Constitutional Commentary

Faculty-edited law journal provides articles, review essays and book reviews on constitutional law and history.

Articles from Vol. 24, No. 2, Summer

Abortion and Original Meaning
I. ORIGINALISM VERSUS LIVING CONSTITUTIONALISM: A FALSE DICHOTOMY In his famous critique of Roe v. Wade, (1) John Hart Ely remarked that if a principle that purportedly justifies a constitutional right "lacks connection with any value the Constitution...
Can a Constitutional Amendment Overrule a Supreme Court Decision?
Of course it can, you idiot!, you might well say to me, answering my title question. Why would anyone waste even the minimal time needed to write a short, light article addressing a question with such a ridiculously self-evident answer? Could I...
Original Interpretive Principles as the Core of Originalism
Abortion and Original Meaning is a powerful article that is sure to have resonance in the field of constitutional interpretation. Professor Balkin undertakes what many previously would have thought a conjuror's trick: he attempts to locate the constitutional...
Originalism and Its Discontents (Plus a Thought or Two about Abortion)
In Abortion and Original Meaning, (1) Jack Balkin presents an intriguing new argument for the soundness of the result, though not the reasoning, of Roe v. Wade. (2) Balkin is one of his generation's widest ranging and most consistently engaging legal...
Original Meaning and Constitutional Redemption
One of the many benefits of having one's ideas analyzed by a group of intelligent and able commentators (1) is that they improve the work by showing the author which parts of the argument need to be clarified, which parts need to be adjusted, and which...
The Perpetual Anxiety of Living Constitutionalism
It certainly seems like the originalists are winning. Professor Jack Balkin--finding that he couldn't beat 'em--joined them. (1) Living constitutionalists used to turn to Balkin as a reliable advocate; he recently wrote "we are all living constitutionalists...
The Progressive Political Power of Balkin's "Original Meaning"
Jack Balkin's Abortion and Original Meaning should be widely read and debated, not only by constitutional theorists but by a broad range of those who care about his subject: how the United States interprets its foundational document. How should those...
Underlying Principles
In his article, Abortion and Original Meaning, (1) Jack Balkin makes the startling disclosure that he is now an originalist. "[C]onstitutional interpretation," he writes, "requires fidelity to the original meaning of the Constitution and to the principles...