Gerard N. Magliocca (Indiana University School of Law- Indianapolis) has posted The Constitution Can Do No Wrong (University of Illinois Law Review, Forthcoming) on SSRN. Here is the abstract:
One theme of Jack Balkin’s new book on "Living Originalism" is that constitutional legitimacy is sustained by the belief that the text can be redeemed from incorrect interpretations. The premise behind this “constitutional faith” is that there is a platonic Constitution somewhere, which is suggested by the text’s description of “a more perfect union.”
This Symposium Essay probes that infallibility principle and its effect on constitutional theory and practice. There are three robust constraints that flow from viewing the Constitution as perfect. First, some things are just too wrong to be constitutional. Second, some things are just too wrong to have ever been constitutional. Third, some things about the Constitution are just too sensitive to discuss in public.
Posted at 11:04 AM