Nine Perspectives on Living Originalism
Jack M. Balkin
Yale University - Law School
March 2, 2012
University of Illinois Law Review, Vol. 2012, No. 3, p. 101, 2012
Yale Law School, Public Law Working Paper No. 245
This Article responds to the nine contributions to a symposium on Living Originalism (Harvard University Press 2011). It considers nine different aspects of the argument in the book: (1) why constitutions around the world contain vague and abstract language, and how a constitution’s choice of language connects to the purposes of a constitution; (2) the book’s theory of democratic legitimacy; (3) how the book’s argument applies to constitutional cultures outside the United States, and the relationship between original and implied meanings; (4) the differences between the book’s theory of constitutional interpretation and that of Ronald Dworkin; (5) whether the book’s account of legal principles is consistent with legal positivism; (6) the book’s account of the U.S. Constitution as both “fallen” and as “higher law;” (7) whether a “protestant” constitutional culture — in which citizens feel authorized to state what the Constitution means for themselves — benefits or harms democratic legitimacy; (8) the book’s account of the original meaning of “commerce” as “intercourse,” and Congress’s power to regulate interstate networks of transportation and communication; and (9) the book’s message for living constitutionalists and constitutional originalists.
Number of Pages in PDF File: 59
Keywords: Constitutional Interpretation, Originalism, Living Constitutionalism
JEL Classification: K10Accepted Paper Series
Date posted: March 4, 2012
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