Law Commons^™

Reconstruction And Resistance, Kermit Roosevelt Iii

All Faculty Scholarship

This review essay considers Jack Balkin’s two recent books, Living Originalism and Constitutional Redemption. It argues that Balkin’s theoretical contribution is substantial. His reconciliation of originalism and living constitutionalism is correct and should mark a real advance in constitutional theory and scholarship. Political considerations may, however, complicate its reception. Something like political considerations seem also to have complicated Balkin’s theory. He suggests that we may think of American constitutional history as an attempt to redeem the promises of the Declaration of Independence. I argue that the Reconstruction Amendments are a much more appropriate focus for redemption and speculate that Balkin …

Constitutional And Religious Redemption: Assessing Jack Balkin's Call For A 'Constitutional Project’, Linda C. Mcclain

Faculty Scholarship

I begin with a disclaimer: I am not a constitutional theorist. I haven’t even played one on TV. But according to Professor Jack Balkin’s ambitious new book Living Originalism, that should not stop me from engaging in what he calls “the constitutional project,” in which I, along with others, attempt to interpret – indeed, to redeem – the U.S. constitution.1 Living Originalism pairs two intriguing ideas: a “constitutional project” and “constitutional redemption.” I am excited by the notion of a project, and of a constitutional project in particular. In my work for at least a decade I have used the …

Why The 'Originalism' In 'Living Originalism'?, Hugh Baxter

Faculty Scholarship

Jack Balkin’s "Living Originalism" (2011), together with the companion volume "Constitutional Redemption," is an extraordinary achievement that secures his position in the front rank of American constitutional theorists. In those works, Balkin develops a constitutional theory he identifies alternatively as “living originalism” and as “framework originalism.” In this latter expression, Balkin distinguishes two senses of the term “framework.” In the first sense of “framework,” the Constitution establishes a framework for governance and politics. The second sense of “framework” derives from the first. Governance, Balkin argues, involves state-building and constitutional construction by the political branches, not just by the courts. Social …

Where Liberty Lies: Civil Society And Individual Rights After 9/11, David Cole

Georgetown Law Faculty Publications and Other Works

Had someone told you, on September 11, 2001, that the United States would not be able to do whatever it wanted in response to the terrorist attacks of that day, you might well have questioned their sanity. The United States was the most powerful country in the world, and had the world’s sympathy in the immediate aftermath of the attacks. Who would stop it? Al Qaeda had few friends beyond the Taliban. As a historical matter, Congress and the courts had virtually always deferred to the executive in such times of crisis. And the American polity was unlikely to object …

Faith And Fidelity: Originalism And The Possibility Of Constitutional Redemption, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay reviews Constitutional Redemption: Political Faith in an Unjust World by Jack Balkin (2011) and Living Originalism by Jack M. Balkin (2011).

Contemporary scholarly debates about originalism and living constitutionalism are filled with claims about the political valence of these two theories. Here are some examples: "Originalism remains even now a powerful vehicle for conservative mobilization. ..." "[L]iving constitutionalism...has been at the core of progressive constitutional thought since the 1970s." "[A]ny reasonably well-informed observer knows that the term 'living Constitution' encodes liberal sympathies, just as originalism encodes conservative ones. ..." "[O]riginalism cannot easily be appropriated to progressive constitutional arguments." …