The Method of Text and ?: Jack Balkin’s Originalism with No Regrets

Abstract:     
In this comment on Jack Balkin’s Living Originalism, I analyze his method of “text and principle.” I have no quarrel with Balkin’s claim that some of the constitutional norms are rules and some are standards. However, his claim that some of the norms are “principles,” which principles do most of the work in his attempt to reconcile originalism and living constitutionalism, is the claim that I find doubtful. I examine three conceptions of what such principles might be, and I conclude that one of them is possible but highly unlikely, while the others are not merely unlikely but impossible of realization.

Number of Pages in PDF File: 16

Keywords: originalism, rule, standard, principle, jurisprudence, constitutional interpretation

JEL Classification: K10

Accepted Paper Series