Why the 'Originalism' in 'Living Originalism?'

11 Pages Posted: 6 Oct 2015

See all articles by Hugh W. Baxter

Hugh W. Baxter

affiliation not provided to SSRN

Date Written: 2012

Abstract

Jack Balkin’s "Living Originalism" (2011), together with the companion volume "Constitutional Redemption," is an extraordinary achievement that secures his position in the front rank of American constitutional theorists. In those works, Balkin develops a constitutional theory he identifies alternatively as “living originalism” and as “framework originalism.” In this latter expression, Balkin distinguishes two senses of the term “framework.”

In the first sense of “framework,” the Constitution establishes a framework for governance and politics. The second sense of “framework” derives from the first. Governance, Balkin argues, involves state-building and constitutional construction by the political branches, not just by the courts. Social and political movements, too, invoke the Constitution in their bids for social transformation, and so political discussion among ordinary citizens also has this dimension of constitutional argument and development. The Constitution, then, also provides a framework for constitutional politics.

But while these senses of “framework” are clear in Balkin’s “framework originalism,” I find the invocation of originalism less obvious. In what follows, I first consider the reasons Balkin explicitly offers for that choice, and then I consider the extent to which original meaning (or original anything) is an important part of his approach at all. My interest is not in telling Balkin what to call his theory, but instead simply in exploring the extent to which it links with what might be considered originalist themes and concerns.

Suggested Citation

Baxter, Hugh W., Why the 'Originalism' in 'Living Originalism?' (2012). Boston University Law Review, Vol. 92, p. 1213, 2012, Boston Univ. School of Law, Public Law Research Paper, Available at SSRN: https://ssrn.com/abstract=2670063

Hugh W. Baxter (Contact Author)

affiliation not provided to SSRN

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