I have uploaded my short draft, The Anxiety of Living Constitutionalism, to SSRN. Here’s an abstract of the essay, which is a reply to Jack Balkin’s Abortion and Original Meaning for Constitutional Commentary:
It certainly seems like the originalists are winning. Professor Jack Balkin – finding that he couldn’t beat ’em – joined them. Living constitutionalists used to turn to Balkin as a reliable advocate; he recently wrote “we are all living constitutionalists now.” But Balkin has forsaken them. Losing such an important advocate might be a sign that what some once deemed the “ascendant” and dominant theory in constitutional interpretation is on the decline. Still, don’t count living constitutionalism out of the game just yet.
I’m hopeful that I will have an opportunity to fix it up before publication — so please send your comments.
Posted by Ethan Leib on December 20, 2006 at 11:35 AM