Document Type

Article

Comments

Response and Colloquy (with David A. Strauss), 92 Boston University Law Review 1271 (2012)

Abstract

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

2012

Included in

Law Commons

Share

COinS