A central theme of Living Originalism is that the legitimacy of the American Constitution depends on its success not only as basic law and higher law but also as our law. To succeed, the Constitution must provide a viable framework for governance that allocates powers and responsibilities (basic law), and it must serve as a source of aspiration, a reflection of values that stand above our ordinary legal practices and hold them to account (higher law). But it must also succeed as our law—a constitution that Americans view ―as our achievement and the product of our efforts as a people, which involves a collective identification with those who came before us and with those who will come after us. Viewing the Constitution as our law means that we are attached to it, even if we never officially consented to it. We regard it as belonging to us, and therefore we have the right to interpret it for ourselves and make claims in its name. The notion that the Constitution‘s legitimacy might depend on its success as ―our law‖ is a useful frame for discussing the excellent papers in this symposium. I will not be able to address everything the contributors have to say; instead I shall pick a few ideas in each essay, and show how they are connected to the idea of the American Constitution as ―our law.
Jack M. Balkin,
The American Constitution as “Our Law”,
Yale J.L. & Human.
Available at: https://digitalcommons.law.yale.edu/yjlh/vol25/iss1/8