Living originalism / Jack M. Balkin.

Format:

Book

Author/Creator:

Balkin, J. M.

Language:

English

Subjects (All):

Constitutional law--United States--Philosophy.

Constitutional law.

United States.

Philosophy.

Constitutional law--United States.

Law--United States--Interpretation and construction.

Law.

Origin (Philosophy).

Physical Description:

vi, 474 pages ; 24 cm

Place of Publication:

Cambridge, Mass. : Belknap Press of Harvard University Press, 2011.

Summary:

Rejecting the false dichotomy between constitutional originalism and theories of the living constitution, Balkin (constitutional law, Yale Law School) offers a theory of "framework originalism" that views the US Constitution "as an initial framework for governance that sets politics in motion" and demands ongoing constitutional construction together with an associated theory of interpretation and construction, the method of "text and principle," which requires fidelity to the rules and standards stated by the Constitution's text and the principles underlying the text, as adapted to current circumstances, thus presenting an approach that is at once both originalist and living constitutionalist. Such an approach requires as much attention to institutional developments and state building processes (such as the Congressional establishment of new executive departments or frameworks of civil rights protection) that themselves have relied on interpretation of constitutional principles (beyond the specifics of the constitutional text's given rules) as it does to judicial doctrines and decisions. This approach allows each generation of Americans to seek to persuade each other about how text and principle can apply to changing circumstances and problems over time and thus brings social movements into the understanding of the development of constitutional law. Annotation ©2012 Book News, Inc., Portland, OR (booknews.com)

Contents:

Fidelity

Fidelity to text and principle

Framework originalism

Why original meaning?

Basic law, higher law, our law

Constitutional faith and constitutional redemption

Originalisms

Precedents and pragmatic exceptions

Construction

A platform for persuasion

Commerce

Privileges or immunities

Equality before the law

Texts and principles

Change

Rethinking living constitutionalism

Change and legitimacy.

Notes:

Includes bibliographical references (pages 341-457) and index.

ISBN:

9780674061781

0674061780

OCLC:

709670308