The Method of Text and ?: Jack Balkin’s Originalism With No Regrets

In this Article on Professor Jack Balkin’s Living Originalism, I analyze his method of “text and principle.” I have no quarrel with Professor Balkin’s claim that some of the constitutional norms are rules and some are standards. His claim, however, that some of the norms are “principles”—principles that do most of the work in his attempt to reconcile originalism and living constitutionalism—is the claim I find doubtful. I examine three conceptions of what such principles might be, and I conclude that one of them is possible but highly unlikely, while the others are not merely unlikely but impossible of realization.

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