This essay reviews Constitutional Redemption: Political Faith in an Unjust World by Jack Balkin (2011) and Living Originalism by Jack M. Balkin (2011).
Contemporary scholarly debates about originalism and living constitutionalism are filled with claims about the political valence of these two theories. Here are some examples: "Originalism remains even now a powerful vehicle for conservative mobilization. ..." "[L]iving constitutionalism...has been at the core of progressive constitutional thought since the 1970s." "[A]ny reasonably well-informed observer knows that the term 'living Constitution' encodes liberal sympathies, just as originalism encodes conservative ones. ..." "[O]riginalism cannot easily be appropriated to progressive constitutional arguments." The conventional wisdom associates originalism with the right and living constitutionalism with the left.
But are these claims correct? Could there be a progressive constitutional theory that is consistent with the core premises of originalism? This essay will answer these questions with a focus on the views of Jack Balkin as they were developed in Constitutional Redemption and Living Originalism. Here is the roadmap. Part II will address the question, "What is fidelity to the original meaning of the Constitution?" by laying out a brief history of originalist theory, identifying the core of originalist thought, and then explicating the idea of constitutional fidelity. Part III will address the question, "What is faith in the possibility of constitutional redemption?" by explicating the notions of redemption, faith, and possibility. Part IV will then explore the widely held view that belief in progressive constitutional redemption is impossible, and will assess Jack Balkin's arguments for a reconciliation of progressive faith and constitutional fidelity. Part V concludes.
91 Tex. L. Rev. 147-173 (2012)
Scholarly Commons Citation
Solum, Lawrence B., "Faith and Fidelity: Originalism and the Possibility of Constitutional Redemption" (2012). Georgetown Law Faculty Publications and Other Works. Paper 1231.