an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
This essay, written for a symposium on Living Originalism that will appear in the Yale Journal of Law and the Humanities, considers how to apply the theory of Living Originalism to comparative constitutionalism.
Living Originalism argues that a constitution like America's must succeed simultaneously as basic law, as higher law, and as "our law"-- a constitution that Americans view “as our achievement and the product of our efforts as a people.” What could these ideas mean in a comparative context?
First, the essay discusses how the theory of framework originalism and the method of text and principle might apply to constitutions in countries outside the United States.
Second, and conversely, it argues that nothing in the notion of the Constitution as "our law" prevents comparisons to the constitutional experience of other countries as a means of understanding and affirming a distinctive American political identity. In fact, the current debate in the United States over the use of foreign legal materials in constitutional adjudication is really a struggle over American cultural identity, in which both sides are attempting to claim and reshape American constitutional culture.
Third, the essay argues that although American constitutional culture's romance with originalism is distinctive, American constitutional interpretation, like the interpretation of many post-World War II constitutions, often employs purposive interpretation that is not originalist. This helps explain how the idea of constitutional redemption--a key concept in Living Originalism and Constitutional Redemption--might operate in countries with very different histories than America's.
The remainder of the essay emphasizes that questions of interpretive theory flow from larger questions about legitimacy, constitutional faith, and constitutional redemption. The most important disagreements in constitutional theory do not concern technical questions; they concern disagreements about constitutional vision and the proper direction of the country and its trans-generational constitutional project.