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The Perpetual Anxiety Of Living Constitutionalism, Ethan J. Leib
The Perpetual Anxiety Of Living Constitutionalism, Ethan J. Leib
Faculty Scholarship
It certainly seems like the originalists are winning. Professor Jack Balkin--finding that he couldn't beat 'em--joined them. Living constitutionalists used to turn to Balkin as a reliable advocate; he recently wrote “we are all living constitutionalists now.” But Balkin has forsaken them. Losing such an important advocate might be a sign that what some once deemed the “ascendant” and dominant theory in constitutional interpretation is on the decline. 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.
Why Supermajoritarianism Does Not Illuminate The Interpretive Debate Between Originalists And Non-Originalists, Ethan J. Leib
Why Supermajoritarianism Does Not Illuminate The Interpretive Debate Between Originalists And Non-Originalists, Ethan J. Leib
Faculty Scholarship
In A Pragmatic Defense of Originalism, they seek to explain why supermajoritarianism furnishes a new pragmatic defense of originalism. In this Essay, I dispute each of their substantive claims. First, I argue that there is nothing newly pragmatic about their defense. Although they claim to want to make originalists and pragmatists friends, nothing about their project is likely to accomplish this matchmaking. Second, I argue that there is no reason to believe that constitutional entrenchments produced under supermajoritarian decision rules are any more desirable as a general matter than rules produced under other, more relaxed, decision rules. At the core …