Original interpretive principles as the core of originalism.
Constitutional Commentary › Vol. 24 Nbr. 2, June 2007
Linked as:
Summary
Response to article by Jack M. Balkin in this issue, p. 291
See the full content of this document
Extract
Original interpretive principles as the core of originalism.
Abortion and Original Meaning is a powerful article that is sure to have resonance in the field of constitutional interpretation. Professor Balkin undertakes what many previously would have thought a conjuror's trick: he attempts to locate the constitutional right to abortion, the poster child for imposition of the judiciary's own idiosyncratic values, in the original meaning of the Constitution. And he seeks to accomplish this feat by purporting to show how the theory of the living constitution is really an orginalist theory, once original meaning is properly divorced from the framers and ratifiers' expectations of how the provisions would be applied--what Balkin calls "original expected applications."
As such, the article has great strategic value: it attempts to appropriate for the living constitution philosophy the intellectual capital and public respectability that originalism has earned recently in the academy as well as the wider world. Even more boldly, it brands those who have claimed to be originalists as heretics to the true religion, on the ground that their focus on the original expected applications kills the document's vitality. By contrast, Balkin claims that his focus on the principles of the original meaning gives it life. In our view Balkin presents a false dichotomy--either embrace abstract principles whose meaning is almost infinitely malleable or confine the Constitution to the applicati...See the full content of this document
Sponsored links
