Construct or Construe
- Living Originalism by Jack Balkin
Harvard, 474 pp, £25.95, January 2012, ISBN 978 0 674 06178 1
Living originalism? The heart sinks. Is this going to resemble a treatise on secular spirituality or tabloid ethics or some other well-meant oxymoron? To a degree, the despondency is justified. How can you breathe life into a text if its meaning remains what it was in 1787 or 1868? Jack Balkin, who holds one of America’s premier chairs of constitutional law, argues that you can. He is not seeking to recruit diehard originalists to the cause of creative interpretation of the US constitution, or to persuade them and their antagonists that they are all really in the same business. What he sets out to do is to offer an account of modern American constitutional adjudication which, while keeping the fundamentalists at bay, begins with fidelity to the text but recognises that, if it is to continue to be the basis of a living polity, it has to be creatively bodied out as time goes by.