Two Cheers for Professor Balkin's Originalism

Abstract

Yale law professor Jack Balkin has recently argued in three forthcoming law review articles that originalism and living constitutionalism are compatible contrary to the claims of Supreme Court Justice Antonin Scalia. This essay explores Balkin's claims, agrees with him to some extent, but suggests a number of subjects on which Balkin needs to say more. Balin's writing is powerful, but we argue his approach to constitutional interpretation is in tension with some of the core fundamental principles of constitutionalism itself.