Saturday, April 05, 2008

The Building Constitution

The latest post in Jack Balkin's posts on living constitutionalism expresses many thoughts I have had regarding the purpose and the role of constitutional interpretation. It contrasts the view that (1) the constitution provides a framework (in some places specific, some places vague, and some places silent) that political institutions fill out over time and modify as the knowledge and sensibilities grow and change with the view that the constitution is a integrated document with (2) all meaning and application is bound by the expected application in the late 1700's.

Not explicitly included in the constitution were instructions on how the judiciary and others should interpret and apply the founding document. To determine how the document should be interpreted, any good originalist or textualist should agree that the we should look to the works of the Constitution itself and the practices at the time for clues as to how it should be implemented. Balkin makes the persuasive point that in many places the Constitution is written with broad language, particularly section 1 of the Fourteenth Amendment:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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