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Thursday, May 17, 2007

Balkin Replies

Jack Balkin has posted a meaty reply to those of us that consider his "Abortion and Original Meaning" in the forthcoming issue of Constitutional Commentary.  Here are the comments on the original essay that are available on SSRN:

Randy Barnett: Underlying Principles

Ethan J Leib: The Perpetual Anxiety of Living Constitutionalism

Mitchell Berman: Originalism and Its Discontents

John McGinnis & Michael Rappaport: Original Interpretive Principles as the Core of Originalism

Jack's reply is powerful -- and helpfully responds to all of our complaints; it also expands on the theory in ways that could not necessarily have been anticipated in the original article so makes his project more complete.  As I told Jack when I read it:

I think your reply to me is spot on.  When I was writing [my contribution], I was
really struggling with the possibility that my account of living
constitutionalism ("LC") was just a just-so story.  Your optimistic spin is
perfectly plausible -- and I realize you have been staking out the
optimistic position for some time, even though sometimes you seemed
to me less a man of faith than other times.  Your "coming out" party
as an originalist seemed as good a time as any, though, to foreground
some of the less optimistic LC types who are left behind in your
redemption song.  Having just read Sandy's new book when I was
writing gave me some confidence in the more anxious story.

Posted by Ethan Leib on May 17, 2007 at 12:16 PM in Article Spotlight | Permalink


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