Jack Balkin’s Rich Historicism and Diet Originalism: Health Benefits and Risks for the Constitutional System

In Living Originalism, Jack Balkin reasons from two points of view — the perspective of the constitutional system as a whole and the perspective of the faithful participant in that system. First, he provides a systemic account of constitutional change, which he calls “living constitutionalism.” Second, he offers an individual approach to constitutional interpretation and construction, which he calls “framework originalism” or “the method of text and principle.” Reasoning from the systemic perspective, Balkin develops a compelling theory of the processes of constitutional change. Balkin may insufficiently appreciate, however, that public candor about — or even deep awareness of — the pervasiveness of constitutional change can undermine self-confidence about one’s own constitutional convictions. Such self-confidence underwrites effective advocacy in the present. Historicism teaches that, time and again, many right-thinking people were wrong notwithstanding their certainty that they were right. This knowledge, which encourages consciousness of one’s own consciousness, may cause those of us who suffer from “modernist anxiety” to question why we should be so sure we are right today. Reasoning from the individual perspective, Balkin provides a persuasive, if imperfect, account of the importance of the constitutional text in the American tradition. But Balkin does not seem to register the potential consequences of turning to “originalism” following decades in which the term has been associated in public debates with a conservative political practice, and when conservatives control the federal judiciary. A progressive declaration in 2012 that “we are all originalists now” would risk lending unintended support to the ongoing fruits of conservative originalism, including an unsettling of the New Deal Settlement, the Second Reconstruction, and more. Such a development would be troubling not only from the perspective of progressive constitutionalists, but also from the perspective of the constitutional system. Conservative politicians and judges, who may either misunderstand Balkin or wish to repurpose him (as Balkin seeks to repurpose originalism), might use a progressive embrace of Balkin’s very thin version of originalism to throw everyone into an easily caricatured originalist camp. That misappropriation, in turn, might undermine the diversity of constitutional opinion that exists in fact and that secures the legitimacy of the system as a whole

Jack Balkin\u27s Interaction Theory of “Commerce”

In his book, Living Originalism, Jack Balkin proposes what he calls the “interaction theory” of the original semantic meaning of the word “commerce” in the Commerce Clause. He claims that “commerce” meant “social interaction.” In this article I show why this theory is wrong due to errors of commission and omission. Balkin is wrong to reduce “commerce” to “intercourse,” “intercourse” to “interaction,” and “interaction” to “affecting.” This triple reduction distorts rather than illuminates the original meaning of “commerce.” And Balkin omits from his discussion the massive amounts of evidence of contemporary usage—along with dictionary definitions of “intercourse”—establishing that “commerce” referred to the trade or transportation of things or persons, and did not include such productive economic activity as manufacturing or agriculture, much less all social interaction. In this article, I also reply to Balkin’s criticisms of my book, Restoring the Lost Constitution. I show how his heavy reliance on Gunning Bedford’s resolution in the secret Philadelphia convention is misplaced in a discussion of the original meaning of the Commerce Clause

The Quest to Reprogram Cultural Software: A Hermeneutical Response to Jack Balkin\u27s Theory of Ideology and Critique

In his recent book, Cultural Software, Jack Balkin offers a new approach to ideology and critical theory in an effort to overcome the deficiencies he finds in Hans-Georg Gadamer\u27s hermeneutical account. This Article demonstrates that the productive aspects of Balkin\u27s theory are central to Gadamer\u27s philosophy, and the unproductive elements in Balkin\u27s theory are best explained by his deviation from Gadamer\u27s philosophical hermeneutics. Mootz rejects Balkin\u27s transcendental argument in favor of Gadamer\u27s insistence that critique is a feature of hermeneutical experience and that critical theory is the practice of maximizing the critical distance that occurs only within hermeneutical engagements. Relying on a model derived from rhetorical exchange and psychotherapeutic practice, Mootz concludes that critique is always a social experience and that critical theory is the practice of reflecting on how best to facilitate this social experience

Education Professor Named Editor-in-Chief of Counseling Journal

Richard Balkin began role with international publication April

Counseling Professor Honored for Adolescent Mental Health Research

Rick Balkin wins prestigious award from American Counseling Associatio

Constitutional Crisis and Constitutional Rot

No one could accuse Donald Trump\u27s presidency of being boring. The first hundred days have careened wildly through scandals, revelations, outrages, and fracturing of political norms. Because Donald Trump is very unpopular, and because he regularly does things that his opponents consider outrageous, his critics have begun to describe his actions as creating or precipitating a constitutional crisis, especially following his first executive order limiting entry into the United States, and again after his firing of FBI director James Comey

Construction and Constraint: Discussion of Living Originalism

Jack Balkin\u27s Living Originalism raises many important questions about contemporary constitutional theory. Can and should liberals and progressives embrace originalism? Can the New Deal expansion of national legislative power be given originalist foundations? Is there a plausible originalist case for a right to reproductive autonomy and hence for the Court\u27s decision in Roe v. Wade? Is the fact of theoretical disagreement among originalists evidence for the thesis that the originalist project is in disarray

Constitutional Change, Courts, and Social Movements

In Constitutional Redemption: Political Faith in an Unjust World, Professor Jack Balkin\u27 furnishes a positive account of constitutional change, advances a normative vision of the relationship between popular mobilizations and evolving constitutional principles, and develops an interpretive theory aimed at fulfilling the Constitution\u27s promise. Rather than take an internal perspective that asks how courts alter constitutional doctrine, Balkin decenters adjudication and instead views the role of courts in constitutional change through the lens of social movements. In doing so, he convincingly exposes the feedback loop between social movements and courts: courts respond to claims and visions crafted by movements, and court decisions in turn shape the claims and visions of those movements and alter the political terrain on which those movements operate. By placing social movements, rather than courts, at the center of his analysis, Balkin ultimately redeems courts, demonstrating their lively, legitimate, and contingent role in the process of constitutional and social change. In doing so, he challenges influential constitutional scholarship that takes a generally pessimistic view of courts

The Politics of Postmodern Jurisprudence

What is the politics of postmodern jurisprudence? Forms of postmodern interpretivism, including philosophical hermeneutics and deconstruction, assert that we are always and already interpreting. This assertion has provoked numerous scholarly attacks, many of which invoke standard modernist hobgoblins such as textual indeterminacy, solipsism, ethical relativism, and nihilism. From the modernist standpoint, postmodern jurisprudence thus is either conservative or apolitical because it lacks the firm foundations necessary for knowledge and critique. In this article, I argue that these modernist attacks not only are mistaken but that they also obscure the potentially radical political ramifications of postmodern interpretivism. My discussion focuses on two recent and seemingly opposed articles: Dennis Patterson\u27s The Poverty of Interpretive Universalism: Toward the Reconstruction of Legal Theory and J.M. Balkin\u27s Transcendental Deconstruction, Transcendent Justice. Patterson directly assails postmodern interpretivism, which he refers to as interpretive universalism and hermeneutic holism. According to Patterson, we must reject interpretivism because it necessarily leads to an infinite regress of interpretations: interpretivism sends us reeling into an abyss where we can never grasp the meaning of a text because it constantly slips away into another interpretation, another meaning - and another, and another, and another. In contrast to Patterson, Balkin identifies himself as a deconstructionist - a type of postmodern interpretivist - and in fact, Balkin\u27s article can be read as an effort to respond to Patterson\u27s concerns. Balkin acknowledges and directly confronts the potential nihilism of deconstruction, and in doing so searches for a source of human values. Specifically, Balkin attempts to identify the source of the human desire or drive for justice. He concludes that transcendent values, including justice, arise from the wellsprings of the human soul, which transcend the creations of culture