Living Originalism

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Overview

Originalism and living constitutionalism, so often understood to be diametrically opposing views of our nation’s founding document, are not in conflict—they are compatible. So argues Jack Balkin, one of the leading constitutional scholars of our time, in this long-awaited book. Step by step, Balkin gracefully outlines a constitutional theory that demonstrates why modern conceptions of civil rights and civil liberties, and the modern state’s protection of national security, health, safety, and the environment, are fully consistent with the Constitution’s original meaning. And he shows how both liberals and conservatives, working through political parties and social movements, play important roles in the ongoing project of constitutional construction.

By making firm rules but also deliberately incorporating flexible standards and abstract principles, the Constitution’s authors constructed a framework for politics on which later generations could build. Americans have taken up this task, producing institutions and doctrines that flesh out the Constitution’s text and principles. Balkin’s analysis offers a way past the angry polemics of our era, a deepened understanding of the Constitution that is at once originalist and living constitutionalist, and a vision that allows all Americans to reclaim the Constitution as their own.

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Editorial Reviews

Washington Times

It will rivet anyone who cares about the Constitution...Jack Balkin is one of the most insightful scholars working on constitutional issues today, and Living Originalism is a great read for any originalist who wants to stop and think every few pages.
— Robert VerBruggen

New Republic

Living Originalism…succeeds in providing an endlessly engaging theory of constitutional law that wrestles with the field's most urgent concerns in a way that accounts for nuance without sacrificing clarity. That is no meager achievement. Balkin's book will likely serve as a focal point for constitutional theorists of various stripes for years to come. The volume's prominence seems assured because it presents in an unusually acute form the fundamental question of whether any variety of originalism can provide what liberals want—and, significantly, what liberals in future generations will want—in a theory of constitutional interpretation.
— Justin Driver

Choice

American constitutional interpretation generally divides into two rival theories. The first, originalism, contends that the Constitution should be read in light of the intent or original meaning of its framers at the time it was constructed. The second, living constitutionalism, encourages judges to read the document in light of contemporary understandings and society. Both theories are controversial, have partisan adherents, and are deficient, according to Balkin, in that they fail to capture how the Constitution must be read within the context of American democracy and the broader role that not just the courts but also the other branches of government and citizens have in giving meaning to it. Balkin offers a powerful theory that clarifies originalism and living constitutionalism, constructing a theory of living originalism that brings the two together. Balkin articulates a theory about how constitutions have basic meanings that are particularly applied in and over time, showing how text, intent, and meaning can provide both a framework for democracy and a guide for how judges should approach specific issues such as equal protection.
— D. Schultz

Sanford Levinson
Living Originalism is the best book on constitutional theory I have ever read. It offers brilliant argument and insights and is often truly moving in its conception of what it means to take the Constitution seriously. It will be a worthy successor to Bickel's The Least Dangerous Branch and Ely's Democracy and Distrust in framing discussion of the Constitution for years to come.
Randy Barnett
Living Originalism is the best and most important work in constitutional theory since Dworkin's Law's Empire. Despite my deep disagreement with several of its key claims, it is without doubt a work of remarkable sophistication, maturity, and grace. Jack Balkin is already in the upper echelon of today's constitutional scholars, but this book puts him at the top of the top.
Dahlia Lithwick
With this book Jack Balkin has produced what might be described as an owner's manual for the Constitution, revealing with painstaking care the many ways in which it can be read and interpreted. Balkin deftly shows how we can move past arguments over 'living' versus 'originalist' constitutionalism, to arrive at the welcome place where Americans can own and redeem the Constitution for themselves.
Jack Rakove
Jack Balkin is the lion among the legal scholars who understand that the original meaning of the Constitution is something that progressives can embrace just as readily as conservatives have. In Living Originalism, he shows why it is not enough to perform leaps of lexicographical legerdemain that have little to do with the real history of our founding document. Balkin boldly appeals to us to take both the text and principles of the original Constitution seriously. The Constitution has always been constructed, not simply interpreted, and Balkin wonderfully explains how this unavoidable process can be squared with its original meaning.
Washington Times - Robert Verbruggen
It will rivet anyone who cares about the Constitution...Jack Balkin is one of the most insightful scholars working on constitutional issues today, and Living Originalism is a great read for any originalist who wants to stop and think every few pages.
New Republic - Justin Driver
Living Originalism…succeeds in providing an endlessly engaging theory of constitutional law that wrestles with the field's most urgent concerns in a way that accounts for nuance without sacrificing clarity. That is no meager achievement. Balkin's book will likely serve as a focal point for constitutional theorists of various stripes for years to come. The volume's prominence seems assured because it presents in an unusually acute form the fundamental question of whether any variety of originalism can provide what liberals want--and, significantly, what liberals in future generations will want--in a theory of constitutional interpretation.
Choice - D. Schultz
American constitutional interpretation generally divides into two rival theories. The first, originalism, contends that the Constitution should be read in light of the intent or original meaning of its framers at the time it was constructed. The second, living constitutionalism, encourages judges to read the document in light of contemporary understandings and society. Both theories are controversial, have partisan adherents, and are deficient, according to Balkin, in that they fail to capture how the Constitution must be read within the context of American democracy and the broader role that not just the courts but also the other branches of government and citizens have in giving meaning to it. Balkin offers a powerful theory that clarifies originalism and living constitutionalism, constructing a theory of living originalism that brings the two together. Balkin articulates a theory about how constitutions have basic meanings that are particularly applied in and over time, showing how text, intent, and meaning can provide both a framework for democracy and a guide for how judges should approach specific issues such as equal protection.
Library Journal
In his new book, Balkin (law, Yale Univ.; Constitutional Redemption) argues that the two dominant schools of constitutional interpretation are lacking. He proposes an alternative that he calls framework originalism, or "text and principle." Unlike originalism, which requires strict adherence to the text of the Constitution as written by the Founding Fathers, framework originalism recognizes that the text of the Constitution is deliberately vague and that the meaning of certain words and clauses has changed over time. He also disagrees with the "living Constitution" theory, which holds that the Constitution is an open-ended document that must be updated periodically to reflect modern issues and challenges. Using framework originalism, Balkin shows not only how the meaning of texts like the commerce clause have changed with time but also how the Constitution's original principles makes them applicable to, for instance, modern civil rights law in ways the framers never envisioned. VERDICT An exhaustive study of a complex and controversial subject, designed for students of law and political science—not for the general reader.—Becky Kennedy, Atlanta-Fulton P.L.
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Product Details

  • ISBN-13: 9780674061781
  • Publisher: Harvard University Press
  • Publication date: 11/30/2011
  • Edition description: New Edition
  • Pages: 480
  • Sales rank: 746,763
  • Product dimensions: 6.40 (w) x 9.30 (h) x 1.60 (d)

Meet the Author

Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment and Director of the Information Society Project and the Knight Law and Media Program, all at Yale Law School.
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Table of Contents

I Fidelity

1 Fidelity to Text and Principle 3

2 Framework Originalism 21

3 Why Original Meaning? 25

4 Basic Law, Higher Law, Our Law 59

5 Constitutional Faith and Constitutional Redemption 74

6 Originalisms 100

7 Precedents and Pragmatic Exceptions 109

II Construction

8 A Platform for Persuasion 129

9 Commerce 138

10 Privileges or Immunities 183

11 Equality before the Law 220

12 Texts and Principles 256

III Change

13 Rethinking Living Constitutionalism 277

14 Change and Legitimacy 320

Notes 341

Acknowledgments 459

Index 461

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