Response and Colloquy (with David A. Strauss), 92 Boston University Law Review 1271 (2012)
JAMES FLEMING: So we'll open it up to questions. Pnina Lahav?
PNINA LAHAV: Jack, it's all wonderful, it's great scholarship, and it's
certainly impressive, but it's not originalism. Tell us more about that.
JACK BALKIN: You can understand originalism as a formal matter, as a
political phenomenon, and as a cultural phenomenon. As a formal matter, I
think Larry Solum has a good definition of originalism. Originalism has three
basic claims. First, originalists believe that something is fixed at the time of
adoption of a constitution; that's the fixation thesis. Second is the amendment
thesis: whatever this thing that is fixed can't be changed except through
amendment. Third is the consequences thesis: that this thing, which is fixed at
the time of adoption and can't be changed except through amendment, matters
for the correct interpretation of the Constitution.
Originalism is a family of theories, all of which share these three elements
in common. And I claim that my theory also has these three elements. First of
all, what is fixed at the time of adoption is the original semantic meaning of the
text. Second, it can't be altered, except through an Article V amendment. And
third, it matters for interpretation; it's the framework on which all construction
is built. There are some things that you just can't do because of the text. Some
of them are obvious; some of them are a little more subtle. And so, as a formal
matter, mine is an originalist theory.
Date of Authorship for this Version
Balkin, Jack M. and Strauss, David, "Response and Colloquy" (2012). Faculty Scholarship Series. Paper 4743.