Two comments on Jack Balkin:
Lawrence B. Solum (Georgetown University Law Center) has posted Faith and Fidelity: Originalism and the Possibility of Constitutional Redemption (Texas Law Review, Vol. 91, No. 147) on SSRN. Here is the abstract:
Could there be a progressive constitutional theory that is consistent with the core premises of originalism? This essay will answer this question with a focus on the views of Jack Balkin as they were developed in his recent monographs, Constitutional Redemption and Living Originalism. Part I is the introduction. Part II will address the question, “What is fidelity to the original meaning of the Constitution?” by laying out a brief history of originalist theory, identifying the core of originalist thought, and then explicating the idea of constitutional fidelity. Part III will address the question, “What is faith in the possibility of constitutional redemption?” by explicating the notions of redemption, faith, and possibility. Part IV will then explore the widely held view that belief in progressive constitutional redemption is impossible, and will assess Jack Balkin’s arguments for a reconciliation of progressive faith and constitutional fidelity. Part V concludes.
Nelson Lund (George Mason University School of Law) has posted Living Originalism: The Magical Mystery Tour (George Mason Law & Economics Research Paper No. 15-07) on SSRN. Here is the 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.
Posted at 6:10 AM