Living Originalism

by Jack M. Balkin

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.

Genres: Law, Philosophy, Nonfiction, Government

480 pages, Hardcover

First published November 28, 2011

Reviews

[Matthew Hines · Rating 4 out of 5]

Author Jack Balkin has stated in legal terms what I have been thinking for years. I had once thought I was alone in my reasoning of constitutional theory; turns out I am not.

Living Originalism is a combination of two major constitutional ideas- the first believes that the constitution is a living document that can be changed to fit the times, and originalists maintain that we must interpret the document according to the original intents of the Founders.

Balkin, amazingly, finds middle ground. He points out that the constitution is both specific on some things and vague on others. As an example, it is very specific on the president's veto power and the makeup of the Electoral College. But it gets vague when it calls federal law and statutes "the supreme law of the land," or leaves some congressional powers very vague.

Balkin contends that in those provisions that are specific, i.e., the veto power section in Article 1, Section 7, we should be originalists. But where it is vague is where the constitution should and needs to be adapted to fit the needs of current generations. His view - and I heartily agree - is that the constitution would not have survived over two hundred years if legal scholars hadn't recognized that constitutional interpretation needs to adapt to the times.

Excellent work, and I found it enlightening. Now, I can put a term to my constitutional persuasion!

[UChicagoLaw]

"I recently finished Jack Balkin's Living Originalism, which is his effort to fuse originalism and living constitutionalism and to show that they're actually opposite sides of the same coin. Balkin is a wonderful writer, and I find his argument that we are being true to the Constitution's original meaning when we construe abstract phrases like "due process" and "equal protection" in accordance with our own times and values to be utterly convincing. As he says, the Framers deliberately chose to use specific language in some places and highly abstract language in others, and the latter choice delegates the interpretive project to future generations. My biggest complaint about the book is Balkin's tendency to deify the Constitution. Even given the greater interpretive flexibility that his method implies, there are still many aspects of the Constitution that we can't change and that we would never choose today (e.g., the Electoral College, the two senators-per-state rule, etc.). Balkin's method is also fairly indeterminate; it just tells us that pretty much any constitutional construction that can be reconciled with the text is permissible. Despite these caveats, Living Originalism is a classic that everyone interested in constitutional law should read." - Nicholas Stephanopoulos

[Duff]

Started this massive work, but just not the right time to read an in depth analysis of constitutional theory. Put it on the to read, as I only got 1/4 way into it.