Living Originalism

Living Originalism

by Jack M. Balkin
Pub. Date:
Harvard University Press


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Living Originalism

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.

Product Details

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

About 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.

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

What People are Saying About This

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.
Sanford Levinson, University of Texas School of Law

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.
Dahlia Lithwick, Slate

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.
Randy Barnett, Georgetown University Law Center

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