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

16 Pages Posted: 9 Sep 2011  

Larry Alexander

University of San Diego School of Law

Date Written: September 8, 2011

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.

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

JEL Classification: K10

Suggested Citation

Alexander, Larry, The Method of Text and ?: Jack Balkin’s Originalism with No Regrets (September 8, 2011). University of Illinois Law Review, Forthcoming; San Diego Legal Studies Paper No. 11-067. Available at SSRN: https://ssrn.com/abstract=1924568

Lawrence Alexander (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-2317 (Phone)
619-260-4728 (Fax)

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