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Living Originalism Hardcover – December 29, 2011

3.9 out of 5 stars 8 customer reviews

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Editorial Reviews

Review

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)

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)

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.
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Product Details

  • Hardcover: 480 pages
  • Publisher: Belknap Press; First Edition (US) First Printing edition (November 29, 2011)
  • Language: English
  • ISBN-10: 0674061780
  • ISBN-13: 978-0674061781
  • Product Dimensions: 6.6 x 1.5 x 9.4 inches
  • Shipping Weight: 1.8 pounds (View shipping rates and policies)
  • Average Customer Review: 3.9 out of 5 stars  See all reviews (8 customer reviews)
  • Amazon Best Sellers Rank: #1,070,849 in Books (See Top 100 in Books)

Customer Reviews

Top Customer Reviews

Format: Hardcover
This is a dazzling book, written with verve, eloquence, and remarkable erudition, which certainly belongs in the pantheon of leading works in American constitutional theory. As a progressive, I'd love to accept Balkin's thesis--roughly, that we have a Constitution that is every liberal's dream. Unfortunately, I'm not persuaded by the argument.

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.
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Format: Hardcover Verified Purchase
I'm not persuaded by Balkin's argument for the same reasons I am not persuaded by the more conservative versions of the position. Balkin, like Justice Scalia and Justice Thomas, fails to construct a historiographical argument that tells the interpreters of legal texts which historical documents can be used to aid in the interpretation of the law and which can't.

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.
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Format: Hardcover
Interesting and well written, but ultimately hypocritical and deeply flawed. The review provided by Mr. Basham is extremely comprehensive and very well done! However, while he correctly spotlights the central problem with the author's theory ("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"), he seems to conclude, in the end, that such is okay as he states: "Our nation has moved beyond original meaning . . . " Really? How and when and to what? To the "Living Constitution" for which Mr. Balkin argues, but that the reviewer recognizes as illegitimate? Ultimately the author seeks to twist Originalism as a cover for the blatantly illegitimate fable of a Living Constitution.
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Format: Hardcover
The author of this book sets out to swallow the constitutional principles of "originalism" into the ideas of "the living constitution". The book somewhat seems to realize without necessarly saying it that the doctrine of the "living constitution" (i.e. unlitmited interpretetation) went way too far. He tries to use "originalism" to find limits and structure for his living constitution. To create vague limits as to where interpretation can go and to re-claim the authority of the text itself for the advocates of the "living constitution".

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.
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