Jack Balkin As the Picasso of Constitutional Theorists

This Article examines Jack Balkin’s seminal book, Living Originalism, and his influence on constitutional theory. In this Article, the author draws illuminating comparisons between Balkin, whom he considers to be one of the giants and geniuses of twentieth and twenty-first century constitutional theory, and Pablo Picasso, acknowledged as one of the giants and geniuses of the twentieth century art world. The author focuses his comparison on Picasso’s version of Diego Velàzquez’s great 1656 painting, Las Meninas (The Maids of Honour). Although Picasso’s Las Meninas may not look like the Velàzquez original, Picasso very much saw himself working within a tradition of art, and one presumes that one purpose of his fifty-eight studies was to establish his legitimate place in a lineage of great artists most definitely including Velàzquez. Similarly, a central point of Balkin’s Living Originalism is that fidelity to U.S. constitutionalism requires an acknowledgement of changed conditions and the concomitant necessity of adjustment. The author suggests that the Living Originalism audience will either realize that the only plausible form of originalism is indeed “Living Originalism” of the kind delineated by Balkin or, instead, look at Living Originalism with the same kind of skepticism that some viewers undoubtedly direct at Picasso’s version of Las Meninas.

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