DOCSLIB.ORG

The Chimerical Concept of Original Public Meaning by Richard H

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Chimerical Concept of Original Public Meaning by Richard H The Chimerical Concept of Original Public Meaning By Richard H. Fallon, Jr. Table of Contents Introduction ..................................................................................................................................... 3 I. Approaches to Constitutional “Meaning”: Contrasting PMO With A Historian’s Multiple- Meanings Thesis ........................................................................................................................ 10 A. Public Meaning Originalism .............................................................................................. 11 B. Foner’s Historical Scholarship and Original Meanings: The Fourteenth Amendment ..... 17 C. A Preliminary Contrast ...................................................................................................... 20 II. Trying to Make Sense of the Idea of Original Public Meaning ............................................... 21 A. Literal or Semantic Meaning ............................................................................................. 21 B. Pragmatic (or Contextual) Enrichment .............................................................................. 23 1. The Problem of Speaker Identification........................................................................... 24 2. The Problem of Characterizing Reasonable Readers or Listeners ................................ 28 C. Reconsidering the Concept of Original Public Meaning ................................................... 33 D. Linguistic Idiosyncrasy ...................................................................................................... 35 III. Generalizing the Thesis.......................................................................................................... 38 IV. Original Legal Meaning ......................................................................................................... 42 A. Jurisprudential Foundations of the Search for Original Legal Meaning ............................ 43 B. The Real but Limited Significance of Semantic and Related Historical Facts .................. 45 C. Issues of Judicial Role ....................................................................................................... 49 V. Conclusion ............................................................................................................................ 511 Story Professor of Law, Harvard Law School. I am grateful to Emily Massey and Benjamin Miller-Gootnick for extraordinarily valuable research assistance. 1 Abstract Constitutional originalism is a work in progress, the leading current version of which is Public Meaning Originalism (PMO). PMO defines the “original public meaning” of constitutional language as what a reasonable person, fluent in English and knowing the salient, publicly available facts about its drafting, would have taken it to mean at the time of its adoption. This Article demonstrates that constitutional provisions rarely if ever have uniquely correct “original public meanings” in this sense. The problem with PMO is metaphysical, not epistemological. Although public meaning originalists speak of “evidence” establishing original public meanings, they have no good account of what, exactly, the evidence is supposed to be evidence of. Beyond historical facts about who said and understood and believed different things at particular times, there is no further, diversity-transcending fact of an original public meaning. When members of the Founding generation disagreed — as they frequently did — the idea of a uniquely correct meaning that existed as a matter of linguistic and historical fact is chimerical. To illustrate its arguments, this Article draws repeatedly on the findings of historian Eric Foner’s recent book on the Civil War Amendments, The Second Founding: How the Civil War and Reconstruction Remade the Constitution. As Foner’s work helps to make vivid, the difficulty for PMO is not that there are no historical and linguistic facts bearing on constitutional meaning, but that courts must construct legal meanings out of an often diverse welter of facts. As the concluding section of the Article demonstrates, the great challenge for courts, lawyers, and constitutional theorists is to understand and discipline the process by which courts select historical facts to construct original constitutional meanings, not as a matter of fact, but as a matter of law. 2 Introduction Constitutional originalism remains a work in progress, subject to continuing reformulation.1 Perhaps the leading current version is public meaning originalism (“PMO”).2 This form of originalism has many variants, but the core tenet is widely shared: the linguistic meaning of a constitutional provision is what a reasonable person, fluent in English and knowing the salient, publicly available facts about the context of its drafting, would have taken it to mean at the time of its adoption.3 Behind this uniting commitment lie two assumptions. First, PMO assumes that we can discover the original linguistic meaning of constitutional provisions in roughly the same way that 1 For a brief history of originalism, see Lawrence B. Solum, What Is Originalism? The Evolution of Contemporary Originalist Theory, in THE CHALLENGE OF ORIGINALISM: THEORIES OF CONSTITUTIONAL INTERPRETATION 12 (Grant Huscroft & Bradley W. Miller eds., 2011). 2 See Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 NW. U. L. REV. 1243, 1251 (2019) (“Most contemporary originalists aim to recover the public meaning of the constitutional text at the time each provision was framed and ratified; this has been the dominant form of originalism since the mid-1980s.”); Jamal Greene, The Case for Original Intent, 80 GEO. WASH. L. REV. 1683, 1684 (2012) (“Today, most academic originalists and even some living constitutionalists say that constitutional interpretation should proceed, first and foremost, from the original meaning of the text at issue.”); Steven G. Calabresi & Hannah M. Begley, Originalism and Same-Sex Marriage, 70 U. MIAMI L. REV. 648, 649 (2016) (asserting that “all modern originalists . are original public meaning textualists” ). But cf. Stephen E. Sachs, Originalism Without Text, 127 YALE L.J. 156, 158 (2017) (noting that “[a] number of scholars, this author among them, have argued for shifting focus from original meaning to our original law”). Professor Solum distinguishes four varieties of originalism in addition to public meaning originalism: Original Intentions Originalism (“The original meaning of the constitutional text is the meaning that the framers intended to convey.”); Ratifiers’ Understandings Originalism (“The original meaning of the constitutional text is the meaning conveyed to the ratifiers of each provision.”); Original Methods Originalism (“The original meaning of the constitutional text is the meaning produced by application of the original methods of constitutional interpretation and construction to the text.”); and Original Law Originalism (“The law in effect at the time the Constitution was ratified is legally binding unless it was changed by methods authorized by the original law.”). Lawrence B. Solum, Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record, 2017 B.Y.U. L. REV. 1621, 1627 [hereinafter Solum, Triangulating Public Meaning]. For an alternative, critical typology, see Thomas B. Colby & Peter J. Smith, Living Originalism, 59 DUKE L.J. 239, 247–67 (2009). 3 See, e.g., ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 16 (2012) (“In their full context, words mean what they conveyed to reasonable people at the time they were written.”); RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY 92 (2004) (“‘[O]riginal [public] meaning’ originalism seeks the public or objective meaning that a reasonable listener would place on the words used in the constitutional provision at the time of its enactment.”); Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. CHI. L. REV. 101, 105 (2001); Gary Lawson & Guy Seidman, Originalism as a Legal Enterprise, 23 CONST. COMMENT. 47, 48 (2006) (“[W]hen interpreting the Constitution, the touchstone is not the specific thoughts in the heads of any particular historical people . but rather the hypothetical understandings of a reasonable person who is artificially constructed by lawyers.”); Michael Stokes Paulsen, The Text, the Whole Text, and Nothing but the Text, So Help Me God: Un-Writing Amar’s Unwritten Constitution, 81 U. CHI. L. REV. 1385, 1440 (2014) (“[T]he true, original public meaning of the language employed . [is] the objective meaning the words would have had, in historical, linguistic, and political context, to a reasonable, informed speaker and reader of the English language at the time that they were adopted.”). 3 we do the meaning of utterances in ordinary conversation.4 Public meaning originalists acknowledge that the “model of conversational interpretation”5 that we apply to identify the meaning of most oral and written communications may require modest adaptations to address the peculiarities of constitutional interpretation.6 Nonetheless, they insist, the interpretive methods that structure conversational interpretation furnish a workable template for identifying constitutional provisions’ original linguistic meanings. Second, PMO posits that the original meaning of constitutional provisions, like those of conversational
Load more

Recommended publications
  • IN the COURT of APPEAL of the STATE of CALIFORNIA SIXTH APPELLATE DISTRICT the PEOPLE, Plaintiff and Respondent, V. JOHN PAUL FL
    Filed 3/14/16 Certified for Publication 3/25/16 (order attached) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT THE PEOPLE, H040327 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C9890809) v. JOHN PAUL FLOREZ, Defendant and Appellant. Defendant John Paul Florez is currently serving a “Three Strikes” sentence. Following the passage of Proposition 36, the Three Strikes Reform Act, he filed a petition for resentencing under Penal Code section 1170.126.1 Although he was eligible to be resentenced based on his current and past offenses, the trial court exercised its discretion to find that resentencing him “would pose an unreasonable risk of danger to public safety” (§ 1170.126, subd. (f)) and denied his petition. Defendant appealed. For the reasons set forth below we find no merit in any of defendant’s arguments on appeal and affirm the order denying his petition. FACTUAL AND PROCEDURAL BACKGROUND In 1998, police officers saw defendant urinating behind a convenience store in San Jose. Officers believed defendant dropped something on the ground. Shortly thereafter, officers discovered a small bag containing 0.19 grams of cocaine near where defendant 1 Unspecified statutory references are to the Penal Code. had been standing. Officers also determined that defendant was under the influence of opiates and cocaine. In 1999, defendant pleaded guilty to a felony for possession of a cocaine base and a misdemeanor for being under the influence. He also admitted he had been convicted of four prior strike convictions within the meaning of the former Three Strikes Law and that he had served three prior prison terms.
    [Show full text]
  • Statutory Interpretation on the Bench: a Survey of Forty-Two Judges on the Federal Courts of Appeals
    STATUTORY INTERPRETATION ON THE BENCH: A SURVEY OF FORTY-TWO JUDGES ON THE FEDERAL COURTS OF APPEALS Abbe R. Gluck & Richard A. Posner CONTENTS I. INTRODUCTION .................................................................................................................. 1300 II. OVERVIEW OF THE STUDY .............................................................................................. 1305 A. Methodology ..................................................................................................................... 1306 B. Summary of the Findings .............................................................................................. 1309 1. The Judge’s Generation ............................................................................................. 1311 2. The D.C. Circuit Is Different ................................................................................... 1312 3. Previous Experience Working in the Federal Government .................................. 1313 C. An Overarching Impression of Widespread Eclecticism ............................................ 1313 III. DO JUDGES REALLY READ THE (WHOLE) STATUTE AT THE OUTSET OF STATUTORY CASES? .................................................................................................... 1315 A. Text Versus Context ......................................................................................................... 1316 B. Dictionaries ....................................................................................................................
    [Show full text]
  • Statutory Interpretation As Practical Reasoning
    Statutory Interpretation as Practical Reasoning William N. Eskridge, Jr.* Philip P. Frickey** In the last decade, statutory interpretation has reemerged as an im- portant topic of academic theory and discussion.' This development is welcome, since few topics are more relevant to legal craft and educa- tion than the interpretation of statutes, now our primary source of law. The recent theoretical views, however, contrast with practicing lawyers' strategies of statutory interpretation. When practitioners give advice to clients about what a statute means, their approach is usually eclectic: They look at the text of the relevant statutory provisions, any legislative history that is available, the context in which the legislation was en- acted, the overall legal landscape, and the lessons of common sense and good policy. But when law professors talk about statutory interpre- tation, they tend to posit a more abstract, "grand" theory that privi- leges one or another of these approaches as "foundational."' 2 The commentators' grand theories contrast with the more ad hoc, fact- based reasoning of the practicing lawyer. How do judges interpret statutes? How should they? Many com- mentators argue that judicial interpretation is, or at least ought to be, inspired by grand theory. We think these commentators are wrong, both descriptively and normatively: Judges' approaches to statutory in- terpretation are generally eclectic, not inspired by any grand theory, * Associate Professor of Law, Georgetown University Law Center. ** Professor of Law, University of Minnesota Law School. We thank Daniel Farber, Dennis Patterson, Richard Posner, Suzanna Sherry, and Peter Strauss for helpful comments on an earlier draft of this article.
    [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]
  • Antonin Scalia's Textualism in Philosophy, Theology, and Judicial
    Antonin Scalia’s Textualism in philosophy, theology, and judicial interpretation of the Constitution* Herman Philipse** 1. Introduction In his forceful and beautifully written essay ‘A Matter of Interpretation’, Justice Antonin Scalia proposed two interrelated theses, a minor and a major one.1 The minor thesis is a causal or historical conjecture and it says that the great liberty taken by judges of the Supreme Court in interpreting statutes and the Constitution is largely due to the influence of the common-law tradition upon legal training in American law schools.2 According to the major thesis, which is normative, this liberty of interpretation is undesirable, because it infringes upon the separation of powers in a modern democracy. If, under the pretext of interpreting laws, judges of the Supreme Court in fact revise the Constitution and promulgate new laws, they are usurping the legislative power that is exclusively assigned to the legislature. For this reason, the Supreme Court, and indeed all courts, should adopt a method of interpretation called ‘Textualism’ or ‘Originalism’, according to which the aim of judicial interpretation is to establish the original meaning of a statutory text.3 As Justice Scalia urges, the question of whether ‘life-tenured judges are free to revise statutes and constitutions adopted by the people and their representatives’ is ‘a question utterly central to the existence of democratic government’ (p. 133). However, both in the United States and in Europe the vast majority of judges reject Justice’s Scalia’s methodology of Textualism, so that the issue of Textualism is a central controversy in the philosophy of law.
    [Show full text]
  • Original Intention and Public Meaning in Constitutional Interpretation Richard Kay University of Connecticut School of Law
    University of Connecticut OpenCommons@UConn Faculty Articles and Papers School of Law 2009 Original Intention and Public Meaning in Constitutional Interpretation Richard Kay University of Connecticut School of Law Follow this and additional works at: https://opencommons.uconn.edu/law_papers Part of the Constitutional Law Commons, and the Public Law and Legal Theory Commons Recommended Citation Kay, Richard, "Original Intention and Public Meaning in Constitutional Interpretation" (2009). Faculty Articles and Papers. 5. https://opencommons.uconn.edu/law_papers/5 +(,121/,1( Citation: 103 Nw. U. L. Rev. 703 2009 Content downloaded/printed from HeinOnline (http://heinonline.org) Mon Aug 15 16:57:29 2016 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0029-3571 Copyright 2009 by Northwestern University School of Law Printedin U.S.A. Northwestern University Law Review Vol. 103, No. 2 ORIGINAL INTENTION AND PUBLIC MEANING IN CONSTITUTIONAL INTERPRETATION Richard S. Kay* INTRO D U CTION ............................................................................................................. 703 I. THE FLIGHT FROM INTENTION .............................................................................
    [Show full text]
  • The Divergence of Constitutional and Statutory Interpretation Kevin M
    Vanderbilt University Law School Scholarship@Vanderbilt Law Vanderbilt Law School Faculty Publications Faculty Scholarship 2004 The Divergence of Constitutional and Statutory Interpretation Kevin M. Stack Follow this and additional works at: http://scholarship.law.vanderbilt.edu/faculty-publications Part of the Law Commons Recommended Citation Kevin M. Stack, The Divergence of Constitutional and Statutory Interpretation, 75 Colorado Law Review. 1 (2004) Available at: http://scholarship.law.vanderbilt.edu/faculty-publications/223 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law School Faculty Publications by an authorized administrator of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. UNIVERSITY OF COLORADO LAW REVIEW Volume 75, Number 1 2004 THE DIVERGENCE OF CONSTITUTIONAL AND STATUTORY INTERPRETATION KEVIN M. STACK* INTRODUCTION ..................................................................................... 2 I. THE CONVERGENCE OF CONSTITUTIONAL AND STATUTORY INTERPRETATION IN CONTEMPORARY THEORY ........................... 10 A. Scalia's Textualist Originalism........................................ 10 B. Eskridge's Dynamism ......................................................... 15 II. THE DEMOCRATIC FOUNDATIONS OF ORIGINALISM IN CONSTITUTIONAL AND STATUTORY INTERPRETATION ..................... 22 A. MajoritarianOriginalism ................................................
    [Show full text]
  • The Original Meaning and Significance of Early State Provisos to the Free Exercise of Religion
    THE ORIGINAL MEANING AND SIGNIFICANCE OF EARLY STATE PROVISOS TO THE FREE EXERCISE OF RELIGION INTRODUCTION The Supreme Court held in Employment Division v. Smith that the Free Exercise Clause does not generally protect religiously motivated conduct from neutral laws of general applicability.1 But the Supreme Court has never determined whether this holding reflects the original meaning of the Free Exercise Clause. Justice Scalia’s City of Boerne concurrence provides the strongest argument issued by any member of the Court defending Smith on historical grounds. 2 He defends Smith’s historical foundation by relying in part upon the provisos to the free exercise guarantees found in the early state constitutions.3 These provisos withheld protection from, inter alia, conduct that violated the “public peace” or “safety” of the state.4 Justice Scalia’s argument supporting Smith on the basis of these state provisos is twofold. First, he argues that these provisos generally withheld protection from conduct that violated any neutral, generally applicable law that a legislature might enact. That is because any violation of law would necessarily be understood to constitute a violation of the “peace” or “safety” of the state.5 Second, he concludes that this 1. See Emp’t Div. v. Smith, 494 U.S. 872 (1990). 2. See City of Boerne v. Flores, 521 U.S. 507, 537–44 (1997) (Scalia, J., concurring). But see id. at 548–64 (O’Connor, J., dissenting) (arguing that the original understanding of the Free Exercise Clause requires some religious-based exemptions). For the primary academic sources relied upon by Justices Scalia and O’Connor, see Phillip A.
    [Show full text]
  • Do We Have a Living Constitution?
    University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2011 Do We Have a Living Constitution? David A. Strauss Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation David A. Strauss, "Do We Have a Living Constitution?," 59 Drake Law Review 973 (2011). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. DO WE HAVE A LIVING CONSTITUTION? David A. Strauss* One of the most fundamental facts about American constitutional law is that it changes. Some answers that would be marked correct in the constitutional law part of the bar exam in 1900 (if there were bar exams then), or 1930, or 1950 would be marked incorrect today. Some arguments that would have been dismissed as frivolous in those years are uncontroversially correct today and vice versa: some claims that would have been immediately accepted in those years would not be offered by any serious lawyer today. For example, in 1900, Congress lacked the power to regulate relations between labor and management; in 1930, the claim that Congress had such power would have been, at most, intensely controversial; today it is taken for granted that Congress has that power.' Even in 1950-and certainly before then-states could pass laws that forbade women from working in certain occupations; today those laws are paradigm examples of unconstitutionality.2 In 1900, the power of states to enforce racial segregation in public schools was beyond serious dispute; today, of course, the unconstitutionality of that kind of segregation is one of the fixed points of constitutional law.3 In 1900 or 1930, the idea the Constitution might * Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School; A.B., Harvard College, 1973; B.
    [Show full text]
  • Original Meaning and Constitutional Redemption
    ORIGINAL MEANING AND CONSTITUTIONAL REDEMPTION Jack M. Balkin* One of the many benefits of having one's ideas analyzed by a group of intelligent and able commentators' is that they im- prove the work by showing the author which parts of the argu- ment need to be clarified, which parts need to be adjusted, and which parts are really central to one's views. With gratitude for their careful attentions, I take this opportunity to clarify, adjust and foreground parts of my argument in Abortion and Original Meaning. In Abortion and Original Meaning I argued that fidelity to the Constitution requires fidelity to the original meaning of the constitutional text and to its underlying principles. I also argued that each generation makes the Constitution their constitution by calling upon its text and principles and arguing about what they mean in their own time. These claims are part of a larger argument about what makes our constitutional system legitimate and what functions a constitution like America's serves and should serve. In this response, I argue that a key element of con- stitutional interpretation is our attitude of attachment to the constitutional project and our beliefs about its ultimate trajec- tory. This is the question of our faith in the constitutional sys- tem, which is also, as I shall explain, a faith in its redemption * Knight Professor of Constitutional Law and the First Amendment, Yale Law School. I would like to thank the contributors to this symposium for their very helpful critiques, and Bruce Ackcrman, Akhil Amar, Sanford Levinson, Lawrence Solum and Kcnji Yoshino for their comments on previous drafts.
    [Show full text]
  • Original Meaning and Its Limits
    NOTES ORIGINAL MEANING AND ITS LIMITS Justice Scalia has prominently defended a version of originalism that demands adherence to the Constitution’s original meaning and, moreover, construes the original meaning of value-laden language, such as “unreasonable” and “cruel,” by reference to the applications it was commonly thought to have at the time of ratification.1 This form of originalism is distinct from versions that place their weight on the original intent or expectations of a clause’s authors or ratifiers rather than on the common meaning of the enacted text,2 and seems to prom- ise an escape from the objection encapsulated in Justice Scalia’s re- mark that “[m]en may intend what they will; but it is only the laws that they enact which bind us.”3 Although Justice Scalia advances a number of arguments in favor of his preferred method of interpretation, one argument is of primary importance.4 This “basic argument” maintains that because the Con- ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION 3 (Amy Gutman ed., 1997) [hereinafter Scalia, Common-Law Courts]; Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849 (1989). 2 See, e.g., Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudica- tion: Three Objections and Responses, 82 NW. U. L. REV. 226 (1988). 3 Scalia, Common-Law Courts, supra note 1, at 17; see also, e.g., Aileen Kavanagh, Original Intention, Enacted Text, and Constitutional Interpretation, 47 AM.
    [Show full text]
  • The Perpetual Anxiety of Living Constitutionalism, 24 Const
    Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 2007 The eP rpetual Anxiety of Living Constitutionalism Ethan J. Leib Fordham University School of Law, [email protected] Follow this and additional works at: http://ir.lawnet.fordham.edu/faculty_scholarship Part of the Constitutional Law Commons Recommended Citation Ethan J. Leib, The Perpetual Anxiety of Living Constitutionalism, 24 Const. Comment. 353 (2007) Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/81 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. THE PERPETUAL ANXIETY OF LIVING CONSTITUTIONALISM Ethan J. Leib* It certainly seems like the originalists are winning. Professor Jack Balkin-finding that he couldn't beat 'em-joined them.1 Living constitutionalists used to turn to Balkin as a reliable ad- vocate; he recently wrote "we are all living constitutionalists now."2 But Balkin has forsaken them. Losing such an important advocate might be a sign that what some once deemed the "as- cendant" and dominant theory in constitutional interpretation is on the decline.3 Still, don't count living constitutionalism out of the game just yet-and don't think one can embrace Balkin's approach and a true living constitutionalism at the same time. We have before us in Balkin's new constitutional theory a lefty originalism to join another prominent conception of the same propounded by Balkin's colleague, Akhil Amar.4 Lefty * Associatc Professor of Law, University of California, Hastings Collcge of thc Law.
    [Show full text]