Texas A&M Law Review


Nelson Lund

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Until very recently, same-sex marriage would have been regarded as a contradiction in terms. Today, questioning the merits of this novel institution is treated as rank bigotry, and the extraordinary rapidity of the change has been widely noted. Another recent development, perhaps not unrelated, has been the marriage of originalism and living constitutionalism.

As an academic theory, originalism arose to counter what was seen as lawless adventurism in the Warren and Burger Courts, displayed especially in opinions that invoked the Fourteenth Amendment without a meaningful effort to interpret its text or to show that the decisions had anything to do with the original purpose of the Amendment. As an academic theory, living constitutionalism, or noninterpretivism, arose in defense of these decisions, which were seen as worthy innovations. Advocates on both sides thought the two theories were irreconcilable. Originalists maintained that judges should respect the original meaning of the written Constitution, namely its text, read when necessary in light of its enactors’ purposes. Noninterpretivists insisted that the original meaning is often impossible to identify and frequently should not be controlling in any event.

Professor Jack M. Balkin’s “living originalism” seeks to eliminate the opposition between these theories, and he is open about his agenda: “The notion that in order for liberals to believe in a living Constitution they have to reject originalism in all of its forms is the biggest canard ever foisted on them.” To adapt President Jefferson’s famous statement in his First Inaugural Address, Balkin exhorts us to agree that we are all originalists, we are all living constitutionalists. Perhaps he hopes to hasten the day when originalists meet the same fate as the Federalist Party. If so, he has already made substantial progress.

This essay begins with a brief summary of the core features of Balkin’s theory. It then shows that one of his most prominent converts has abandoned originalism, mistakenly believing that Balkin has shown what originalism truly is.

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