Living Originalism: The Magical Mystery Tour
Texas A&M Law Review, Vol. 3, No. 1, pp. 31-43, 2015
15 Pages Posted: 27 Feb 2015 Last revised: 6 Oct 2015
Date Written: February 25, 2015
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
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