Living Originalism: The Magical Mystery Tour

Texas A&M Law Review, Vol. 3, No. 1, pp. 31-43, 2015

George Mason Law & Economics Research Paper No. 15-07

15 Pages Posted: 27 Feb 2015 Last revised: 6 Oct 2015

See all articles by Nelson Lund

Nelson Lund

George Mason University School of Law

Date Written: February 25, 2015

Abstract

In a brilliant theoretical maneuver, Professor Jack Balkin has proposed to marry originalism and living constitutionalism. His move resembles President Jefferson’s appeal to Americans, in his First Inaugural Address, to accept that “we are all Republicans, we are all Federalists.” If Balkin’s goal is to send originalism to the same fate as the Federalist Party, he has already made substantial progress.

This short essay begins with a summary of the core features of Balkin’s theory. It then turns to the recent work of Professor Steven G. Calabresi. A founder of the Federalist Society who clerked for Judge Robert Bork and Justice Antonin Scalia, Calabresi was also a special assistant to Attorney General Meese and a speechwriter for Vice President Quayle. He went on to become one of the most frequently cited academic originalists of his generation, but he has now fully converted to Balkin’s “living originalism.”

Calabresi’s conversion suggests that wedding bells are ringing pretty loudly for Balkin’s union of two theories that were once thought to be irreconcilable. This essay argues that the marriage will leave originalism in much the same position as the legal death that married women experienced under the old rules of coverture.

Keywords: Originalism, Living Originalism, Living Constitution, Original Meaning, Noninterpretivism, Equal Protection Clause, Fourteenth Amendment, Sex Discrimination, Balkin, Calabresi

Suggested Citation

Lund, Nelson Robert, Living Originalism: The Magical Mystery Tour (February 25, 2015). Texas A&M Law Review, Vol. 3, No. 1, pp. 31-43, 2015; George Mason Law & Economics Research Paper No. 15-07. Available at SSRN: https://ssrn.com/abstract=2570507 or http://dx.doi.org/10.2139/ssrn.2570507

Nelson Robert Lund (Contact Author)

George Mason University School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8045 (Phone)

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