Welcome to the New Originalism: A Comment on Jack Balkin's Living Originalism

Jerusalem Review of Legal Studies, 2013

Georgetown Public Law Research Paper No. 13-026

8 Pages Posted: 6 Apr 2013

Date Written: March 27, 2013

Abstract

In this short piece for a symposium on Jack Balkin's new book, Living Originalism, I welcome Jack Balkin into the originalist camp. I discuss how and why a nonoriginalist can become an originalist. By discussing how I eventually became an originalist at the end of the last century, I hope to shed some light on what exactly is so remarkable about Jack Balkin’s move. After discussing the appeal of the New Originalism that account for Balkin's originalist move, I conclude by offering a cautionary note about the use of "underlying principles in Balkin's "text and principle" approach, which in certain iterations can be indistinguishable from the old living constitutionalism that Balkin has put behind him.

Keywords: originalism, constitutional interpretation

JEL Classification: K00, K30, K39

Suggested Citation

Barnett, Randy E., Welcome to the New Originalism: A Comment on Jack Balkin's Living Originalism (March 27, 2013). Jerusalem Review of Legal Studies, 2013; Georgetown Public Law Research Paper No. 13-026. Available at SSRN: https://ssrn.com/abstract=2243115

Randy E. Barnett (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9936 (Phone)

HOME PAGE: http://www.randybarnett.com

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