Document Type
Article
Publication Date
2012
ISSN
0276-9948
Publisher
University of Illinois
Language
en-US
Abstract
This Article suggests that, with the publication of Jack Balkin's Living Originalism, we are witnessing the "Balkanization" of originalism (when originalism splits into warring camps) along with the "Balkinization" of originalism (when even Balkin, hitherto a pragmatic living constitutionalist, becomes an originalist). It goes on to argue that Balkin's living originalism is what Ronald Dworkin has called a "moral reading" of the Constitution, for it conceives the Constitution as embodying abstract moral and political principles, not codifying concrete historical rules or practices. Furthermore, despite important differences, there are unmistakable affinities between Balkin's commitment to interpret the Constitution so as to redeem our faith in its promises and aspirations, and Dworkin's commitment to interpret the Constitution so as to make it the best it can be.
Recommended Citation
James E. Fleming,
The Balkinization of Originalism
,
in
University of Illinois Law Review
669
(2012).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/2695
