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An Active, But not an Activist, Judiciary

The judiciary should strike down only laws that clearly violate the meaning of Constitution. For this reason, Jack Balkin’s project of Living Originalism is fundamentally flawed at least as to the...

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The Judicial Power Permits only Interpretation, not Construction

The most import current debate in originalism is between those who believe that judiciary in the course of judicial review can engage only in interpretation and those who believe it can also fill in a...

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Strategic Changes in Constitutional Theory

Jack Balkin agrees with Eric Posner that if the Democrats fill the seat vacated by Justice Scalia, there will be a significant change in liberal arguments: The liberal constitutional theories of the...

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Jack Balkin’s Response on Liberal Constitutional Theory

In my previous post, I noted that Jack Balkin had argued that liberal constitutional theorists are likely to adopt more activist constitutional theories if Justice Scalia’s vacancy is filled by a...

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Balkin on Strategic Originalism

Jack Balkin has written an interesting post commenting upon Steven Smith’s and my discussion of strategic originalism. I agree with Balkin that the effectiveness of strategic originalism would turn on...

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Presidential Power According to Jack Balkin

Earlier this month Jack Balkin (Yale Law School) and I found ourselves on an APSA/Claremont Panel on “The Legacy of Justice Antonin Scalia,” alongside Hadley Arkes and Ralph Rossum. We couldn’t find...

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The Confirmations Wars are not Partisan, but Principled

It is frequently observed that the confirmation process for justices is becoming more partisan, but this characterization is incomplete, even misleading. The classic kind of congressional partisanship...

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A Government Distracted from Its Core Functions Loses Trust

The Senate Judiciary Committee held a hearing on free speech on campus last week. During the question and answer period Senator Diane Feinstein complained that public universities, like Berkeley,...

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The Rise of the Culture of Originalism

  Constitutional theorists succeed practically only when they change the legal culture.  Jack Balkin has remarked that some legal arguments that were once off the wall can become “on the wall,” i.e....

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Debating Original Methods Originalism

Recently, Jack Balkin wrote a critique of Original Methods Originalism, the interpretive approach to original meaning that John McGinnis and I have developed. His approach was based on the new book by...

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