Jack Balkin

• Author: DING Xiaodong
• Pages: 735-742

FRONTIERS OF LAW IN CHINA

VOL. 11 DECEMBER 2016 NO. 4

DOI 10.3868/s050-005-016-0042-3

BOOK REVIEW

Jack Balkin, Living Originalism. [The Belknap Press of Harvard University

Press, Cambridge, Mass, 2011, hardcover, 480pp., US$35] ISBN: 9780674061781

INTRODUCTION .................................................................................................................... 735

I. THE INCONSISTENCY OF ORIGINALISM AND LIVING CONSTITUTIONALISM ............. 736

II. AMERICAN CONSTITUTION AS A PLAN AND A RATIONAL PROJECT......................... 737

III. REASON AND WILL IN LIVING ORIGINALISM ........................................................ 739

IV. A FAINT-HEARTED DECONSTRUCTIONIST: BALKIN’S MISUNDERSTANDING OF

PRINCIPLES AND RULES .......................................................................................... 740

CONCLUSION........................................................................................................................ 742

INTRODUCTION

Originalism and living constitutionalism has long been viewed as two opposing

theories of constitutional interpretation in American constitutional scholarship.

Originalism, on the one hand, is a backward-looking theory, which seeks the original

intent or original meaning of the Constitution. Living constitutionalism, on the other hand,

is a forward-looking theory, which views the American Constitution as an open text that

is “intended to endure for ages to come.”1 There seems to be an inevitable conflict

between originalism and living constitutionalism.

Yet Jack Balkin, one of the most brilliant liberal constitutional scholars, argues that

originalism and living constitutionalism are not in conflict. According to Balkin, living

constitutionalism and fidelity to the original meaning of text are in fact “two sides of the

same coin.” Balkin proposes a theory of living originalism that he thinks would enable

the “conversation between past commitments and present generations” (p. 20). Balkin

says living originalism could allow “people with very different views to reason together”

and could serve as a “platform for persuasion” (pp. 135–136).

In this book review, a short introduction of Balkin’s theory of living originalism and

analysis of the merits and shortcomings of Balkin’s theory is provided. The review argues

that Balkin’s theory, while providing a powerful critique of originalism and living

constitutionalism, also has significant shortcomings. Balkin’s theory is still within the

broad category of normative thinking, which cannot capture the essence of American

Constitutionalism.

1 See McCulloch vs Maryland, 17 U.S. 316 (1819).