Wednesday, December 24, 2014

Balkin: "New Developments in Originalist Theory"

From Jack Balkin here. A taste:
In fact, I was by no means the first to spot the likely consequences for original meaning originalism.  Mark Greenberg and Harry Litman made this argument in 1998; a year later Randy Barnett made a similar move, as did Kim Roosevelt in 2006; and of course, Ronald Dworkin's notion of semantic originalism made the point even earlier still.  The major problem for Steve is that going back to something like "original decisions originalism" is just going to dredge up the same problems as earlier versions of originalism that have since been abandoned.

I believe that there is no going back at this point. Originalism and living constitutionalism are now one nation, indivisible (with liberty and justice for all, we hope!)--and originalism, like humanity itself, is condemned to be free.


Tom Van Dyke said...

Conservatives like Scalia dismiss this "law school law." The liberal "living constitutionalists" aren't going to let what the Constitution was "originally" understood to mean stand in their way.

Cute, but they have no audience except each other. FTR, I like these originalists:

At least half the court might listen to them as opposed to none.

NB: Randy Barnett and the Volokh crew did a helluva job vs. Obamacare

but I don't think "originalism" figured in much, except that the text of the ACA statute should be taken to mean what it actually says, not what its defenders wish it said.

Tom Van Dyke said...

Here are the San Diego guys vs. some of the Balkinites