This Essay examines Jack Balkin’s theory of living originalism, which argues that original constitutional meaning is “thin” while the construction zone—where judges fill gaps in constitutional meaning—is correspondingly “vast.” Within this zone, Balkin contends that judges should be permitted to employ virtually unconstrained modalities of construction, including considerations of consequences, national ethos, and modern history.
While Balkin justifies his theory based on concerns about democratic legitimacy, his framework paradoxically creates significant tension with democratic principles. By granting unelected judges nearly unlimited discretion in constitutional construction, his approach allows the judiciary to override democratically elected legislatures based on criteria that bear little relation to original constitutional meaning. This expansive judicial authority undermines the very democratic legitimacy that Balkin claims to champion.
This Essay proposes an alternative framework, identifying three ways that democratic considerations should constrain constitutional construction. It also presents some preliminary historical evidence from the Founding indicating that the Framers expected courts to take these sorts of considerations into account.