"Foundational" originalism? On Jack Balkin's living originalism

Jerusalem Review of Legal Studies

Volumn 7, Issue 1, 2013, Pages 1-16

  Medina, Barak ^a  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

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[No Author keywords available]

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EID: 85071145781     PISSN: 22197117     EISSN: 22197125     Source Type: Journal    
DOI: 10.1093/jrls/jlt002     Document Type: Article

References (54)

1. JACK M. BALKIN, LIVING ORIGINALISM (2011).
2. CONST. COMMENT. 291-532 (2007).
3. B.U.L. REV. 1127-1306 (2012).
4. MD. L. REV. 953-1172 (2012).
5. McCulloch v. Maryland. 17 U.S. 316. 407 (1819).
6. Balkin is not the first to point at the distinction between provisions that authorize interpreters to work out a changing meaning over time, and those that prescribe a fixed meaning. See, for instance, JOHN HART ELY, DEMOCRACY AND DISTRUST 1 (1980) ("More often the Constitution proceeds by briefly indicating certain fundamental principles whose specific implications for each age must be determined in contemporary context.").
7. See also David A. Strauss, Can Originalism Be Saved?, 92 B.U.L. REV. 1161, 1167 (2012).
8. James E. Fleming, The Balkinization of Originalism, 2012 U. ILL. L. REV. 669, 682.
9. Randy E. Barnett, Jack Balkin's Interaction Theory of "Commerce", 201 U. Ill. L. REV. 623, 625 (2012).
10. Randy E. Barnett, Welcome to the New Originalism: A Comment on Jack Balkin's Living Originalism, 7 JERUSALEM REV. LEGAL STUD. 42 (2013).
11. David Lyons, Constitutional Principles, 92 B.U.L. REV. 1237 (2012).
12. Gary Lawson, Dead Document Walking, 92 B.U.L. REV. 1225 (2012).
13. Ethan J. Leib, The Perpetual Anxiety of Living Constitutionalism, 24 CONST. COMMENT. 353, 355 (2007).
14. Strauss, supra note 6 at 1166. Strauss added that "much of the book consists of learned and elegant arguments about issues in constitutional law that draw on all the various sources that inform 'constitutional construction'⋯ [b]ut at this point, originalism seems to have left the stage: constitutional construction is just a form of living constitutionalism." "much of the book consists of learned and elegant arguments about issues in constitutional law that draw on all the various sources that inform 'constitutional construction'⋯ [b]ut at this point, originalism seems to have left the stage: constitutional construction is just a form of living constitutionalism." "much of the book consists of learned and elegant arguments about issues in constitutional law that draw on all the various sources that inform 'constitutional construction'⋯ [b]ut at this point, originalism seems to have left the stage: constitutional construction is just a form of living constitutionalism." "much of the book consists of learned and elegant arguments about issues in constitutional law that draw on all the various sources that inform 'constitutional construction'⋯ [b]ut at this point, originalism seems to have left the stage: constitutional construction is just a form of living constitutionalism." "much of the book consists of learned and elegant arguments about issues in constitutional law that draw on all the various sources that inform 'constitutional construction'⋯ [b]ut at this point, originalism seems to have left the stage: constitutional construction is just a form of living constitutionalism." "much of the book consists of learned and elegant arguments about issues in constitutional law that draw on all the various sources that inform 'constitutional construction'⋯ [b]ut at this point, originalism seems to have left the stage: constitutional construction is just a form of living constitutionalism." "much of the book consists of learned and elegant arguments about issues in constitutional law that draw on all the various sources that inform 'constitutional construction'⋯ [b]ut at this point, originalism seems to have left the stage: constitutional construction is just a form of living constitutionalism." "much of the book consists of learned and elegant arguments about issues in constitutional law that draw on all the various sources that inform 'constitutional construction'⋯ [b]ut at this point, originalism seems to have left the stage: constitutional construction is just a form of living constitutionalism." "much of the book consists of learned and elegant arguments about issues in constitutional law that draw on all the various sources that inform 'constitutional construction'⋯ [b]ut at this point, originalism seems to have left the stage: constitutional construction is just a form of living constitutionalism." "much of the book consists of learned and elegant arguments about issues in constitutional law that draw on all the various sources that inform 'constitutional construction'⋯ [b]ut at this point, originalism seems to have left the stage: constitutional construction is just a form of living constitutionalism."" "much of the book consists of learned and elegant arguments about issues in constitutional law that draw on all the various sources that inform 'constitutional construction'⋯ [b]ut at this point, originalism seems to have left the stage: constitutional construction is just a form of living constitutionalism."" "much of the book consists of learned and elegant arguments about issues in constitutional law that draw on all the various sources that inform 'constitutional construction'⋯ [b]ut at this point, originalism seems to have left the stage: constitutional construction is just a form of living constitutionalism."" "much of the book consists of learned and elegant arguments about issues in constitutional law that draw on all the various sources that inform 'constitutional construction'⋯ [b]ut at this point, originalism seems to have left the stage: constitutional construction is just a form of living constitutionalism." "Id. at 1166. See also Martin H. Redish & Matthew B. Arnould, Judicial Review, Constitutional Interpretation, and the Democratic Dilemma: Proposing a "Controlled Activism" Alternative, 64 FLA. L. REV. 1485, 1509 (2012).
15. James E. Fleming, Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution, 92 B.U.L. REV. 1171 (2012).
16. Hugh Baxter, Why the "Originalism" in Balkin's Living Originalism?, 92 B.U.L. REV. 1213 (2012).
17. Michael C. Dorf, The Undead Constitution, 125 HARV. L. REV. 2011 (2012).
18. Larry Alexander, The Method of Text and ?: Jack Balkin's Originalism with no Regrets, 2012 U. Ill. L. REV. 611.
19. Lawrence B. Solum, Construction and Constraint: Discussion of Living Originalism, 7 JERUSALEM REV. LEGAL STUD. 17 (2013).
20. JACK M. BALKIN, CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD 226-50 (2011).
21. Mitchell Berman has identified seventy-two (!) varieties of originalism. Mitchell N. Berman, Originalism is Bunk, 84 N.Y.U. L. REV. 1, 14-15 (2009).
22. Randy E. Barnett, Underlying Principles, 24 CONST. COMMENT. 405 (2007).
23. James E. Ryan, Laying Claim to the Constitution: The Promise of New Textualism, 97 VA. L. REV. 1523 (2011).
24. According to Larry Solum, originalism claims that: (i) the (linguistic) meaning of each provision of the Constitution becomes fixed when that provision is framed and ratified; (ii) sound interpretation of the Constitution requires recovery of its original public meaning; and (iii) original public meaning has the force of law, such that courts and officials are bound by the text of the Constitution. Lawrence B. Solum, We are all Originalists Now, in CONSTITUTIONAL ORIGINALISM: A DEBATE 1, 3-4 (Robert W. Bennett & Lawrence B. Solum eds., 2011).
25. Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 17 (Amy Gutmann ed., 1997).
26. RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY (2004).
27. Shelly Kagan, The Structure of Normative Ethics, 6 PHIL. PERSPECTIVES 223, 224-36 (1992).
28. See, e.g., Alan Schwartz & Robert E. Scott, Contract Interpretation Redux, 119 YALE L.J. 926, 939 (2010) ("[T]he [interpretive] rules are mandatory in the sense that parties cannot contract directly for textualist or contextualist interpretive rules.").
29. A similar result is reached on the basis of the positivist idea that a "constitutional assembly" enjoys, by definition, limitless powers. See, e.g., CLAUDE KLEIN, THÉORIE ET PRATIQUE DU POUVOIR CONSTITUENT (1996).
30. Jack M. Balkin, Nine Perspectives on Living Originalism, 2012 U. Ill. L. REV. 815, 830 (emphasis added).
31. Jeffrey Goldsworthy, Constitutional Cultures, Democracy, and Unwritten Principles, 2012 U. Ill. L. REV. 683, 691-93.
32. See, e.g., DAVID A. STRAUSS, THE LIVING CONSTITUTION (2010).
33. John Locke, The Second Treatise of Government, in TWO TREATISES OF GOVERNMENT 265, § 141 at 363 (Peter Laslett ed., 1988).
34. See also Larry Alexander & Saikrishna Prakash, Reports of the Nondelegation Doctrine's Death Are Greatly Exaggerated, 70 U. CHI. L. REV. 1297, 1299-300 (2003).
35. Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. CHI. L. REV. 1721 (2002).
36. Industrial Union Dept. v. American Petrol. Inst. 448 U.S. 607, 675 (1980).
37. Edmund Burke, Speech to the Electors of Bristol, in THE WORKS OF THE RIGHT HONORABLE EDMUND BURKE 2, 10 (1826).
38. See, e.g., BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991).
39. BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998).
40. Larry Alexander, Judicial Review and Moral Rights, 33 QUEEN'S L.J. 1 (2007).
41. Cf. John O. McGinnis & Michael B. Rappaport, The Abstract Meaning Fallacy, 2012 U. ILL. L. REV. 737.
42. Hans W. Baade, "Original Intent" in Historical Perspective: Some Critical Glosses, 69 TEX. L. REV. 1001, 1004 (1991).
43. For further discussions on this issue see, e.g., Saul Cornell, The People's Constitution vs. The Lawyers' Constitution: Popular Constitutionalism and the Original Debate over Originalism, 23 YALE J.L. & HUMAN. 295 (2011).
44. Larry Kramer, Two (More) Problems with Originalism, 31 HARV. J.L. & PUB. POL'Y 907 (2008).
45. JOSEPH RAZ, THE MORALITY OF FREEDOM 181 (1986)
46. See, e.g., Ruth Gavison, What Belongs in a Constitution? 13 CONST. POL. ECON. 89 (2002).
47. SUJIT CHOUDRY (ED.) CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES: INTEGRATION OR ACCOMMODATION? (2008).
48. HANNA LERNER, MAKING CONSTITUTIONS IN DEEPLY DIVIDED SOCIETIES (2011).
49. Balkin, supra note 23 at 232-37. See also Jack M. Balkin, The Roots of the Living Constitution, 92 B.U.L. REV. 1129, 1133 (2012)
50. AHARON BARAK, THE JUDGE IN A DEMOCRACY (2006).
51. See, e.g., H.C.J. 466/07 Galon v. The Attorney General (2012).
52. C.A. 6821/93 United Mizrachi Bank v. Migdal Cooperative Village, 49(4) P.D. 221 (1995).
53. See, e.g., Adam Shinar, Accidental Constitutionalism: The Political Foundations and Implications of Israeli Constitution-Making, in THE SOCIAL AND POLITICAL FOUNDATIONS OF CONSTITUTIONS (Dennis Galligan & Mila Versteeg eds., 2013).
54. GARY J. JACOBSOHN, CONSTITUTIONAL IDENTITY (2010).