Regarding the “Jack Balkin vs. David Strauss” symposium at Boston University upcoming on November 3 (noted here), reader Brett Bellmore writes: “I must admit to having the impression that Balkin’s ‘variant of originalism’ is the one normally referred to as ‘living constitutionalism’. And that that this explains his preference for an interpretive theory which perhaps falls short at interpretation.”
I also must admit to a somewhat similar reaction. If I were attending the symposium, I would be looking for places where Balkin and Strauss differ on results, rather than on theories of adjudication. And I would be asking whether those differences are driven by methodology or by policy preferences. In particular, I’d be looking for places where (a) the two differ on results and (b) at least one of them thinks that his result is a bad policy outcome but is compelled by his methodology (and not by others).
Posted at 7:00 AM