Nine Perspectives on Living Originalism

59 Pages Posted: 4 Mar 2012  

Jack M. Balkin

Yale University - Law School

Date Written: March 2, 2012

Abstract

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.

Keywords: Constitutional Interpretation, Originalism, Living Constitutionalism

JEL Classification: K10

Suggested Citation

Balkin, Jack M., Nine Perspectives on Living Originalism (March 2, 2012). University of Illinois Law Review, Vol. 2012, No. 3, p. 101, 2012; Yale Law School, Public Law Working Paper No. 245. Available at SSRN: https://ssrn.com/abstract=2015088

Jack M. Balkin (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1620 (Phone)

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