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Living Originalism Hardcover – December 29, 2011
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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)
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)
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. (Jack Rakove, Stanford University)
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 Washington Times 2012-02-13)
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 New Republic 2012-04-05)
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 Choice 2012-06-01)
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Top Customer Reviews
Balkin--like Akhil Amar, Larry Solum, and other heavyweight liberal legal theorists--wants to reconcile originalism with progressive living constitutionalism. It finally dawned on liberals that old-fashioned living constitutionalism, which gives unelected judges the de facto power to update and amend the Constitution, doesn't play well in Peoria. So they decided to play lip service to original meaning while arguing for a broader theory of constitutional adjudication that supports Roe, Lawrence, and pretty much all liberal holdings of the past half century.
To do this, liberals like Balkin need to treat the "original meaning" of the constitution's vague, general, or abstract language as virtually empty shells into which they can pour whatever potent concoction they like. Key constitutional phrases such as "equal protection of the laws," "due process of law," "freedom of speech," "privileges or immunities," and "cruel or unusual punishments" are seen as expressing vague or abstract "standards" or "principles." As such, their meaning quickly "runs out." To apply the vague standards or abstract principles or to concretize them in legal doctrines, we need to engage in "construction," not "interpretation.Read more ›
That said, as a way of doing originalism, Balkin's version is compelling and necessary reading for anyone thinking about these issues. His critique of Antonin Scalia style "Public Meaning Originalism" is sharp, persuasive and original. And his defense of the distinction between the framework and aspirational aspects of the Constitution, and their meaning, is a purely textualist exercise that Constitutional interpretation must take seriously even in the absence of an originalist influence.
There are a limited number of books about the interpretation of a constitution that will frame the debate in the next generation and this is a good candidate for being one of them. Also would serve as a good introduction to the issues for law students who've had Con Law II.
The book is well argued. But the case it argues is rather flawed and (even worse) reactive. The author doesn't really have his heart in originalism. But he realizes the intellectual strength of the idea and seems to see the only way of saving his "living constitution" is somehow to come to terms with originalism. To compromise with it. To find some way of working his ideas into it or turning originalism around until it is his idea.
He wants to textually break the constitution up and see different sections as having different levels of literalness which require different degrees of respect for original intent. A reasonable sounding idea, but impossible in practice because the standard would be too subjective. The author somewhat admits this by effectively showing that he would have to give up nothing in terms of past court decisions. About all he admits is that the courts could not give states three senators or allow a 22 year old to be elected president.
The book goes after the contradiction between stare decisis (i.e. accepting previous precidents of the court) and originalism. That is probably one of the more unconvincing arguments in the book.Read more ›
Most Recent Customer Reviews
I got this book for an extra credit book report for my con law class. I never ended up reading it, or doing the report so it was a waste of $Published on November 30, 2013 by prg83
This book presents a coherent and well-reasoned theory of constitutional law. It has deepened my understanding of how to think about the constitution and, in particular, the... Read morePublished on March 27, 2012 by Paul Sleven <firstname.lastname@example.org>