Vinicius Marinho (Universidade Federal do Rio de Janeiro (UFRJ) – Faculdade Nacional de Direito) has posted Constitutional Prophecy on SSRN. Here is the abstract:
Stories and history talk to people and to each other. Stories have the power to change history’s trajectory and contrariwise because they articulate people’s self through faith and fidelity. Faith in the Constitution and in the American society’s ability to live up to its own ideals, in each relevant historical moment, can legitimate the entire constitutional system. From this standpoint, Jack Balkin analyzes the feasibility for a constitutional model that would be placed between originalism and living constitutionalism. “Framework originalism” is supposed to underlie how the American constitution is the oldest written constitutional project alive and why it is still so vibrant and dynamic nowadays.
Through the Western great religious language and discourse, Balkin contends that constitutional changing might be safely established if the original text meaning is respected and people can directly participate in it. In his Constitutional Protestantism, which was previously addressed by Sanford Levinson, all individuals can express their own constitutional interpretation and promote it among others.
In this essay, I will briefly analyze how his faith-based structure works in contemporary American Constitutionalism and then raise some hidden key points about the framework’s structure, which will demand Balkin some effort in his forthcoming book on the same theme. Some of these points are the peril in admitting the use of a “semantic meaning” for individual constitutional interpretation, an attempt to depolarize the debate originalism vs. living constitutionalism, and the distance between people’s public behavior and people’s internal status, precisely, faith.
Posted at 7:00 AM