DOCSLIB.ORG

Svlvita (2010)

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Svlvita (2010) SANFORD VICTOR LEVINSON Born: June 17, 1941, Hendersonville, North Carolina Personal data: Married to Cynthia Yenkin Levinson; two daughters, Meira and Rachel two granddaughters, Rebecca and Gabriella Home address 3410 Windsor Road Austin, Texas 78703 512/477-6445 512/477/6458 (fax) 60 Glen Rd., #102 Brookline, Massachusetts 02445 617-734-6458 Office Address: University of Texas Law School 727 E. Dean Keeton Street Austin, Texas 78705 512/232-1351 (direct dial) fax: 512-471-6988 e-mail: [email protected] Education: Duke University, B.A., 1962 Harvard University, Ph.D., 1969 Stanford Law School, J.D., 1973 Honors and Fellowships: Phi Beta Kappa Woodrow Wilson Fellowship, 1962 Kent Fellowship, 1966 Russell Sage Fellowship, 1970 American Law Institute (elected to membership, 1986) American Academy of Arts and Sciences (elected to membership, 2001) National Constitution Center, Distinguished Scholars Advisory Panel, 2001-2003 Resident, The Bellagio Study and Conference Center of the Rockefeller Foundation, October 18-November 15, 2005 Admitted to Bar: California, 1973 United States Supreme Court, 1981 Sanford Levinson, Page 2 EMPLOYMENT AND PROFESSIONAL AFFILIATIONS Professor, University of Texas Law School, January 1980 Charles Tilford McCormick Professor of Law, 1986-90; Angus G. Wynne Sr. Professor of Civil Jurisprudence, 1990-91; W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law, 1991- Professor, University of Texas, Department of Government, 1985- Associate, Shalom Hartman Center for Jewish Philosophy, Jerusalem, Israel, 1983- Visiting Professor, Harvard Law School, Fall, 1991, Spring 2004, Spring 2005, Fall 2006, Fall 2007, Fall 2008, Fall 2009 Visiting Professor, Harvard Department of Government, Fall 2009, Fall 2010 Visiting Professor of Law, University of Melbourne Law School (Australia), August 2008 Visiting Professor of Law, University of Auckland Law School (New Zealand), July 2007 Visiting Lecturer, Yale Law School, Spring 2003, Spring 2004, Spring 2005 Visiting Professor, Yale Law School, Fall 2006 Visiting Professor, Faculty of Law, Central European University, Summer 1997, Spring 2001, Spring 2005 Visiting Professor, School of Law, University of Paris 1, May 2004 Visiting Professor, School of Law, University of Paris 2, January 2003 Visiting Professor of Law, New York University School of Law, 1999-2000 Visiting Professor, Boston University School of Law, Spring 1997 Faculty, Cardozo Law School Summer Program-Central European University, Summer 1999 Fellow, Institute of United States Studies, University of London, May-June 1994 Fellow, Program in Ethics and the Professions, Harvard University, 1991-92 Faculty, seminar on "Raising Rights Consciousness," sponsored by Democracy After Communism, Hungary, June 1991, 1992 Sanford Levinson, Page 3 Professor, University of San Francisco Summer School at Trinity College, Dublin (Ireland), June 1987 Member, Institute for Advanced Study, Princeton, New Jersey, 1986-1987 Visiting Professor, Faculty of Law, Hebrew University in Jerusalem, October-December 1984 Assistant professor, Department of Politics, Princeton University, 1975-79 Visiting assistant professor, University of Texas Law School, Summer 1978 Staff attorney, Children's Defense Fund, Cambridge, Massachusetts, 1974-75 Law clerk to Honorable James B. McMillan, United States District Judge for the Western District of North Carolina, Charlotte, North Carolina, 1973-74 Research assistant to Professor Anthony G. Amsterdam, Stanford Law School, Summer 1972 Instructor and assistant professor, Department of Political Science, Ohio State University, 1968-70 Teaching Fellow, Harvard University, Department of Government, 1963-68, Committee on Social Studies, 1967-68 Summer associate, Tuskegee Institute, Tuskegee, Alabama, 1964 Summer intern, Subcommittee on Constitutional Rights, Committee on the Judiciary, United States Senate, 1963 Summer intern, National Aeronautics and Space Administration, 1962 WRITINGS AND PUBLICATIONS Ph. D. Dissertation "Skepticism, Democracy, and Judicial Restraint: An Essay on the Thought of Oliver Wendell Holmes and Felix Frankfurter," Department of Government, Harvard University, 1969 Books Sanford Levinson, Page 4 POWER AND COMMUNITY: DISSENTING ESSAYS IN POLITICAL SCIENCE (co-editor, with Phillip Green, Pantheon Books, 1970) PROCESSES OF CONSTITUTIONAL DECISIONMAKING (co-editor, with Paul Brest, of 2d edition, Little, Brown & Co., 1983; 3d ed., 1992; with Jack Balkin and Akhil Amar, 4th ed., Aspen Law & Business, 2000; with Jack Balkin, Akhil Amar, and Reva Siegel, 5th ed. Aspen Law & Business, 2006) CONSTITUTIONAL FAITH (Princeton University Press, 1988) (Winner of Scribes Book Award, 1989) LAW AND LITERARY INTERPRETATION (co-editor, with Steven Mailloux, Northwestern University Press, 1988) THE AMERICAN SUPREME COURT (expanded edition of the original book written by Robert G. McCloskey published in 1960)(University of Chicago Press, 1994, rev’d eds. 2000, 2004, 2010) RESPONDING TO IMPERFECTION: CONSTITUTIONAL AMENDMENT IN THEORY AND PRACTICE (editor)(Princeton University Press, 1995) CONSTITUTIONAL STUPIDITIES, CONSTITUTIONAL TRAGEDIES (co-editor, with William Eskridge)(New York University Press, 1998) WRITTEN IN STONE: PUBLIC MONUMENTS IN CHANGING SOCIETIES (Duke University Press, 1998) LEGAL CANONS (co-editor, with Jack Balkin)(New York University Press, 2000) WRESTLING WITH DIVERSITY (Duke University Press, 2003) TORTURE: A COLLECTION (editor)(Oxford University Press, 2004, rev’d and expanded edition, 2006) THE LOUISIANA PURCHASE AND AMERICAN EXPANSION, 1803-1898, (co-editor, with Bartholomew Sparrow)(Rowman and Littlefield, 2005) OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) (Oxford University Press, 2006, pb. ed. with new afterword 2008) Articles and Review Essays Sanford Levinson, Page 5 "The Supreme Court: Does It Have an Innovative Role?" 3 THE HARVARD REVIEW 1-23 (Fall-Winter 1965) "On 'Teaching' Political 'Science,'” in Green and Levinson, POWER AND COMMUNITY 59-84 (1970) "The Democratic Faith of Felix Frankfurter," 25 STANFORD LAW REVIEW 430-448 (1973) "Responsibility for Crimes of War," 2 PHILOSOPHY AND PUBLIC AFFAIRS 244-273 (1973), reprinted in Scanlon, Nagel, and Cohen, eds., WAR AND MORAL RESPONSIBILITY 104-133 (1974) "New Perspectives on the Reconstruction Court," 26 STANFORD LAW REVIEW 461-484 (1974) "The Rediscovery of Law," 57 SOUNDINGS 318-337 (1974) "Fidelity to Law and the Assessment of Political Activity (Or, Can a War Criminal Be a Great Man?)," 27 STANFORD LAW REVIEW 1185-1202 (1975) "The Specious Morality of the Law," HARPERS, May 1977, pp. 35ff, reprinted in Eastman et al., eds., THE NORTON READER: AN ANTHOLOGY OF EXPOSITORY PROSE 902- 913 (5th ed. 1980). "Taking Law Seriously: Reflections on 'Thinking Like a Lawyer,'" 30 STANFORD LAW REVIEW 1071-1109 (1978) "An Exemplary Death," COLUMBIA JOURNALISM REVIEW, May-June 1979, pp. 31-33 "Self-Evident Truths in the Declaration of Independence," 57 TEXAS LAW REVIEW 847-858 (1979) "The 'Constitution' in American Civil Religion," 1979 SUPREME COURT REVIEW 123-151 "AALS Law and Religion Panel: 'Law as Our Civil Religion,'" 31 MERCER LAW REVIEW 477-483 (1980) "Judicial Review and the Problem of the Comprehensible Constitution," 59 TEXAS LAW REVIEW 395-420 (1981) "Die Zulassung aum offentlichen Dienst und die Schranken der politischen Betatigung der Beamten in der USA" (with D. C. Umbach), in Bockenforde, Tomuschat and Umbach, eds., EXTREMISTEN UND OFFENTLICHER DIENST: RECHSTLAGE UND PRAXIS DES Sanford Levinson, Page 6 ZUGANGS ZUM UND DER ENTLASSUNG AUS DEM OFFENTLISHEN DIENST IN WESTEUROPA, USA, JUSOGLAWIEN UND DER EG 559-599 (Baden-Baden: Nomos Verlagsgesellschaft, 1981). "Under Cover: The Hidden Costs of Infiltration," 12 HASTINGS CENTER REPORT, August 1982, pp. 29-37, reprinted in Gerald Caplan, ed., ABSCAM ETHICS: MORAL ISSUES AND DECEPTION IN LAW ENFORCEMENT (1983) "Law as Literature," 60 TEXAS LAW REVIEW 373-403 (1982), reprinted in Levinson and Mailloux, INTERPRETING LAW AND LITERATURE (1988); Frederick Schauer, ed., LAW AND LANGUAGE (1993); with minor deletions in Thomas L. Haskell, ed., THE AUTHORITY OF EXPERTS 242-270 (1984); and in part in John H. Garvey and T. Alexander Aleinikoff, eds., MODERN CONSTITUTIONAL THEORY: A READER 54-60 (1989) "The Turn Toward Functionalism in Constitutional Theory," 8 DAYTON LAW REVIEW 567-578 (1983) "Escaping Liberalism: Easier Said Than Done," 96 HARVARD LAW REVIEW 1466-1488 (1983), reprinted in CRITICAL LEGAL STUDIES 480-502 (1986)(collection of essays published in the Harvard Law Review) "Law," 35 AMERICAN QUARTERLY 191-204 (1983) (Symposium on American Thought in the 1980's) "Princeton Versus Free Speech: A Post Mortem," in Craig Kaplan & Ellen Schrecker, eds., REGULATING THE INTELLECTUALS: PERSPECTIVES ON ACADEMIC FREEDOM IN THE 1980s 189-208 (New York: Praeger, 1983) "On Dworkin, Kennedy, and Ely: Decoding the Legal Past," 51 PARTISAN REVIEW 248- 264 (1984) "The Preferences of Friendship," 2 DUKE LAW MAGAZINE, Summer, 1984, pp. 21-24. "Testimonial Privileges and the Preferences of Friendship," 1984 DUKE LAW JOURNAL 631-662 (1984), excerpted in Edward J. Imwinnelried & Glen Wissenberger, eds., AN EVIDENCE ANTHOLOGY 166-173 (1996) "Freedom of Speech and the Right of Access to Private Property Under State Constitutional Law," in Bradley McGraw, ed., DEVELOPMENTS IN STATE CONSTITUTIONAL LAW: THE WILLIAMSBURG CONFERENCE 51-70 (1985) "What Do Lawyers Know (And What Do They Do With Their Knowledge)?
Load more

Recommended publications
  • The Early Years of First Amendment Lochnerism
    COLUMBIA LAW REVIEW VOL. 116 DECEMBER 2016 NO. 8 ARTICLES THE EARLY YEARS OF FIRST AMENDMENT LOCHNERISM Jeremy K. Kessler* From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative “conscience clauses” are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties about such “First Amendment Lochnerism” date back to the federal judiciary’s initial turn to robust protection of free exercise and free expression in the 1930s and 1940s. Then, it was those members of the Supreme Court perceived as most liberal who struck down economic regulations on First Amendment grounds. They did so in a series of contentious cases involving the Jehovah’s Witnesses, who challenged local peddling taxes as burdening a central aspect of their missionary faith—the mass sale and distribution of religious literature. In dissent, Justice Robert Jackson warned that the new “liberal” majority’s expansive conception of First *. Associate Professor and Milton Handler Fellow, Columbia Law School. FoR conversation and counsel along the way,
    [Show full text]
  • An Open Letter to Congressman Gingrich
    Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 1995 An Open Letter to Congressman Gingrich Bruce Ackerman Akhil Amar Jack Balkin Susan Low Bloch Philip Chase Bobbitt Columbia Law School, [email protected] See next page for additional authors Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Constitutional Law Commons, Taxation-Federal Commons, and the Tax Law Commons Recommended Citation Bruce Ackerman, Akhil Amar, Jack Balkin, Susan L. Bloch, Philip C. Bobbitt, Richard Fallon, Paul Kahn, Philip Kurland, Douglas Laycock, Sanford Levinson, Frank Michelman, Michael Perry, Robert Post, Jed Rubenfeld, David Strauss, Cass Sunstein & Harry Wellington, An Open Letter to Congressman Gingrich, 104 YALE L. J. 1539 (1995). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2193 This Response/Comment is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. Authors Bruce Ackerman, Akhil Amar, Jack Balkin, Susan Low Bloch, Philip Chase Bobbitt, Richard Fallon, Paul Kahn, Philip Kurland, Douglas Laycock, Sanford Levinson, Frank Michelman, Michael Perry, Robert Post, Jed Rubenfeld, David Strauss, Cass Sunstein, and Harry Wellington This response/comment is available at Scholarship Archive: https://scholarship.law.columbia.edu/ faculty_scholarship/2193 Comment An Open Letter to Congressman Gingrich* We urge you to reconsider your proposal to amend the House Rules to require a three-fifths vote for enactment of laws that increase income taxes.' This proposal violates the explicit intentions of the Framers.
    [Show full text]
  • Bios for Commercial Speech 2020
    Bios for Commercial Speech 2020 Floyd Abrams Floyd Abrams is Senior Counsel in Cahill Gordon & Reindel LLP's litigation practice group. Floyd has a national trial and appellate practice and extensive experience in high-visibility matters, often involving First Amendment, securities litigation, intellectual property, public policy and regulatory issues. He has argued frequently in the Supreme Court in cases raising issues as diverse as the scope of the First Amendment, the interpretation of ERISA, the nature of broadcast regulation, the impact of copyright law and the continuing viability of the Miranda rule. Floyd Abrams is a member of the American Academy of Arts & Sciences. He has been an active member of both federal and New York City bar associations and has chaired committees for both. He has been the recipient of numerous awards, including Yale Law School’s prestigious Award of Merit in 2015. He has appeared frequently on television and has published articles and reviews in The New York Times, The Washington Post, The Yale Law Journal, The Harvard Law Review, and elsewhere. For fifteen years, Floyd was the William J. Brennan, Jr. Visiting Professor of First Amendment Law at the Columbia Graduate School of Journalism. He has, as well, been a Visiting Lecturer at Yale Law School and Columbia Law School and he is author of Friend of the Court: On the Front Lines with the First Amendment, published by Yale University Press (2013) and Speaking Freely: Trials of the First Amendment, published by Viking Press (2005). Alex Abdo Alex Abdo is the inaugural Litigation Director of the Knight First Amendment Institute at Columbia University.
    [Show full text]
  • Jack Balkin's Interaction Theory of “Commerce”
    Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2011 Jack Balkin's Interaction Theory of “Commerce” Randy E. Barnett Georgetown University Law Center, [email protected] Georgetown Public Law and Legal Theory Research Paper No. 11-37 This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/626 http://ssrn.com/abstract=1803439 2012 U. Ill. L. Rev. 623-667 This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Constitutional Law Commons BARNETT.DOCX (DO NOT DELETE) 5/14/2012 10:46 AM JACK BALKIN’S INTERACTION THEORY OF “COMMERCE” Randy E. Barnett* In his book, Living Originalism, Jack Balkin proposes what he calls the “interaction theory” of the original semantic meaning of the word “commerce” in the commerce clause. He claims that “com- merce” meant “social interaction.” In this Article, I explain why his theory is wrong due to errors of commission and omission. Balkin is wrong to reduce “commerce” to “intercourse,” “intercourse” to “in- teraction,” and “interaction” to “affecting.” This triple reduction dis- torts rather than illuminates the original meaning of “commerce.” Balkin furthermore omits from his discussion the massive amounts of evidence of contemporary usage—along with dictionary definitions of “intercourse”—establishing that “commerce” referred to the trade or transportation of things or persons, and did not include such produc- tive economic activity as manufacturing or agriculture, much less all social interaction. I also reply to Balkin’s criticisms of my book, Re- storing the Lost Constitution.
    [Show full text]
  • Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time
    BALKIN.PRINTER (DO NOT DELETE) 12/21/2019 1:12 PM Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time Jack M. Balkin* INTRODUCTION .......................................................................................... 215 I. POLITICAL REGIMES IN POLITICAL TIME ............................................ 220 A. The Idea of a Constitutional Regime ...................................... 220 B. Judicial Time ........................................................................... 224 II. HOW THE RISE AND FALL OF REGIMES AFFECTS JUDICIAL REVIEW . 227 III. THE ROLE OF CONSTITUTIONAL THEORY IN THE CYCLE OF REGIMES ............................................................................................. 243 A. The Cycle of Regimes and Living Constitutionalism ............. 246 B. The Cycle of Regimes and Originalism .................................. 251 C. The Return of Liberal Skepticism About Judicial Review ..... 261 CONCLUSION ............................................................................................. 264 Introduction Over the course of a little more than a century, American liberals (or, in an earlier period, progressives) and conservatives have switched positions on judicial review, judicial restraint, and the role of the federal courts—not once, but twice.1 At the beginning of the twentieth century, progressives grew increasingly skeptical of judicial review, while conservatives embraced judicial review to limit federal and state regulation and
    [Show full text]
  • Living Originalism and Living Constitutionalism As Moral Readings of the American Constitution
    LIVING ORIGINALISM AND LIVING CONSTITUTIONALISM AS MORAL READINGS OF THE AMERICAN CONSTITUTION JAMES E. FLEMING∗ INTRODUCTION ............................................................................................. 1171 I. THE BALKANIZATION (AND BALKINIZATION) OF ORIGINALISM........ 1173 II. BALKIN’S LIVING ORIGINALISM AS A MORAL READING OF THE AMERICAN CONSTITUTION ................................................................ 1175 III. STRAUSS’S LIVING CONSTITUTIONALISM AS A MORAL READING OF THE AMERICAN CONSTITUTION .................................................... 1177 A. Originalism and Its Sins ............................................................ 1177 B. The Common Law ...................................................................... 1179 C. The Role of the Written Constitution: Common Ground and Jefferson’s Problem ............................................................ 1180 D. Constitutional Amendments and the Living Constitution .......... 1183 CONCLUSION ................................................................................................. 1184 INTRODUCTION With this event – A Symposium on Jack Balkin’s Living Originalism and David Strauss’s The Living Constitution – we launch a Boston University School of Law series of symposia on significant recent books in law. The distinctive format is to pick two significant books that join issue on an important topic, to invite the author of each book to write an essay on the other book, and to invite several Boston University School of Law faculty
    [Show full text]
  • Democracy and Dysfunction: an Exchange
    DEMOCRACY AND DYSFUNCTION: AN EXCHANGE SANFORD LEVINSON' JACK M. BALKIN* September 29, 2015 Dear Jack, It is obviously no longer controversial that the American political system, especially at the national level, is seriously dysfunctional. Consider, for example, what are nearly the opening words-after noting that the United States Capitol is currently enfolded by scaffolding for repair of the physical building-of the distinguished Columbia political scientist and historian Ira Katznelson's recent contribution to a Boston Review forum on "Anxieties of Democracy."' Even if "[r]estoration is underway, its conclusion in sight," repair of the institutions inside the Capitol seems a long way off, if it is even possible.2 Katznelson continues: The House and Senate are presently shackled. Paralyzed by party divisions, influenced excessively by moneyed interests, and perverted by the disappearance of civic virtue, representative institutions appear unable to identify and address our most consequential public problems, including the politics of redistribution, racial equity, immigration, and the proper balance between liberty and national security. Like the dome, American democracy badly needs reconstruction.3 * Professor Sanford Levinson, who holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law, joined the University of Texas Law School in 1980. Professor Levinson is also, in both fall 2015 and 2016, a visiting Professor of Law at Harvard Law School. He was elected to the American Academy of Arts and Sciences in 2001 and received the Lifetime Achievement Award from the Law and Courts Section of the American Political Science Association in 2010. Among his books is Framed:America's 51 Constitutions and the Crisis of Governance (2012).
    [Show full text]
  • White Male Aristocracy
    Boston College Law School Digital Commons @ Boston College Law School Boston College Law School Faculty Papers 4-30-2020 White Male Aristocracy Mary Sarah Bilder Boston College Law School, [email protected] Follow this and additional works at: https://lawdigitalcommons.bc.edu/lsfp Part of the Constitutional Law Commons, and the Legal History Commons Recommended Citation "White Male Aristocracy," Symposium on Gerald Leonard and Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s-1830s (Cambridge University Press, 2019), Balkinization, April 30, 2020. This Article is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law School Faculty Papers by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. Balkinization: White Male Aristocracy More Create Blog Sign In Balkinization Front page Thursday, April 30, 2020 Balkin.com Books by Balkinization White Male Aristocracy Bloggers Balkinization an unanticipated Guest Blogger consequence of Jack M. Balkin For the Symposium on Gerald Leonard and Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s- -- Archives - - 1830s (Cambridge University Press, 2019). Mary Sarah Bilder Gerry Leonard and Saul Cornell’s fascinating book, The Partisan Republic: E-mail: Democracy, Exclusion, and the Fall of the Founders’ Constitution, 1780-1830s Jack Balkin: jackbalkin at tells the story, as I put in in a blurb, “of the unsettling transformation of yahoo.com aristocratic-tinged constitutional republic into a partisan white male democracy.” Bruce Ackerman bruce.ackerman at In this year where we recall the Nineteenth Amendment’s re-enfranchisement of yale.edu women, the Leonard/Cornell book demands that we reevaluate the way we Ian Ayres describe the early nineteenth-century constitutional state.
    [Show full text]
  • Jack Balkin As the Picasso of Constitutional Theorists
    LEVINSON.DOCX (DO NOT DELETE) 4/24/2012 8:11 AM JACK BALKIN AS THE PICASSO OF CONSTITUTIONAL THEORISTS Sanford Levinson* This Article examines Jack Balkin’s seminal book, Living Originalism, and his influence on constitutional theory. In this Arti- cle, the author draws illuminating comparisons between Balkin, whom he considers to be one of the giants and geniuses of twentieth and twenty-first century constitutional theory, and Pablo Picasso, acknowledged as one of the giants and geniuses of the twentieth cen- tury art world. The author focuses his comparison on Picasso’s ver- sion of Diego Velàzquez’s great 1656 painting, Las Meninas (The Maids of Honour). Although Picasso’s Las Meninas may not look like the Velàzquez original, Picasso very much saw himself working within a tradition of art, and one presumes that one purpose of his fif- ty-eight studies was to establish his legitimate place in a lineage of great artists most definitely including Velàzquez. Similarly, a central point of Balkin’s Living Originalism is that fidelity to U.S. constitu- tionalism requires an acknowledgement of changed conditions and the concomitant necessity of adjustment. The author suggests that the Living Originalism audience will either realize that the only plausible form of originalism is indeed “Living Originalism” of the kind delin- eated by Balkin or, instead, look at Living Originalism with the same kind of skepticism that some viewers undoubtedly direct at Picasso’s version of Las Meninas. In case you were wondering, this title is no joke. It came to me as I was visiting Barcelona in March 2011, shortly before we gathered in Champaign-Urbana for the conference on Jack Balkin’s Living Originalism.
    [Show full text]
  • Originalism in Practice†
    Originalism in Practice† * LAWRENCE ROSENTHAL INTRODUCTION.................................................................................................... 1183 I. ORIGINAL EXPECTED APPLICATIONS ............................................................... 1190 A. STRONG ORIGINAL-EXPECTED-APPLICATIONS ORIGINALISM ............... 1192 B. WEAK ORIGINAL-EXPECTED-APPLICATIONS ORIGINALISM .................. 1204 II. SEMANTIC ORIGINALISM ................................................................................ 1209 A. LIBERAL SEMANTIC ORIGINALISM ........................................................ 1213 B. LIBERTARIAN SEMANTIC ORIGINALISM ................................................ 1219 C. CONSERVATIVE SEMANTIC ORIGINALISM ............................................. 1223 III. THE OMNIPRESENCE OF NONORIGINALISM IN CONSTITUTIONAL ADJUDICATION .................................................................................................... 1232 A. CRAWFORD V. WASHINGTON ................................................................... 1232 B. APPRENDI V. NEW JERSEY ....................................................................... 1235 C. DISTRICT OF COLUMBIA V. HELLER ......................................................... 1238 D. THE (LIMITED) PLACE FOR ORIGINALISM IN PRACTICE ......................... 1242 INTRODUCTION Originalism is ascendant. Consider District of Columbia v. Heller,1 in which the Supreme Court, confronting the Second Amendment “right of the people to keep and bear Arms,”2 invalidated the
    [Show full text]
  • Jack Balkin's Interaction Theory of “Commerce”
    BARNETT.DOCX (DO NOT DELETE) 5/14/2012 10:46 AM JACK BALKIN’S INTERACTION THEORY OF “COMMERCE” Randy E. Barnett* In his book, Living Originalism, Jack Balkin proposes what he calls the “interaction theory” of the original semantic meaning of the word “commerce” in the commerce clause. He claims that “com- merce” meant “social interaction.” In this Article, I explain why his theory is wrong due to errors of commission and omission. Balkin is wrong to reduce “commerce” to “intercourse,” “intercourse” to “in- teraction,” and “interaction” to “affecting.” This triple reduction dis- torts rather than illuminates the original meaning of “commerce.” Balkin furthermore omits from his discussion the massive amounts of evidence of contemporary usage—along with dictionary definitions of “intercourse”—establishing that “commerce” referred to the trade or transportation of things or persons, and did not include such produc- tive economic activity as manufacturing or agriculture, much less all social interaction. I also reply to Balkin’s criticisms of my book, Re- storing the Lost Constitution. In particular I explain why his heavy reliance on Gunning Bedford’s resolution in the secret Philadelphia convention is misplaced in a discussion of the original meaning of the commerce clause. One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning.1 It is my pleasure to participate in this symposium on Jack Balkin’s new book, Living Originalism.2 I will not mince words.
    [Show full text]
  • The Popular Constitutional Canon
    William & Mary Bill of Rights Journal Volume 27 (2018-2019) Issue 4 Article 2 May 2019 The Popular Constitutional Canon Tom Donnelly Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Constitutional Law Commons Repository Citation Tom Donnelly, The Popular Constitutional Canon, 27 Wm. & Mary Bill Rts. J. 911 (2019), https://scholarship.law.wm.edu/wmborj/vol27/iss4/2 Copyright c 2019 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj THE POPULAR CONSTITUTIONAL CANON Tom Donnelly* ABSTRACT Popular constitutionalism scholarship has often left out the American people. Sure, ordinary citizens make cameo appearances—often through the actions of elected officials and elite movement leaders. However, focusing on high politics among elite actors—even if those actors are not judges—simply is not enough. If popular constitutional views do, indeed, matter, then we can expect constitutional partisans to try to manipulate the processes through which these views emerge. Some constitutional scholars have made a start, reflecting on the importance of the constitutional canon. However, these scholars focus mostly on the legal canon and often ignore its popular analog. At the same time, other scholars have worked to bring the American people back into constitutional theory by studying the constitu- tional views of ordinary Americans and explaining the ways in which key social movements shape constitutional doctrine. These scholars, however, have largely ignored the pathways of constitutional socialization—the ways in which citizens learn about the Constitution. An important part of this neglected project is tending to the set of stock stories transmitted by key institutions to ordinary citizens—in other words, tending to the popular constitutional canon.
    [Show full text]