In Theory

This post slakes my thirst for

"legal theory":

from Reproductive Rights Prof blog

Mitchell Berman on Originalism and Abortion

Mitchell N. Berman has posted Originalism and its Discontents (Plus a Thought Or Two About Abortion) on SSRN. Here is the abstract:

Abstract:
In Abortion and Original Meaning, Jack Balkin presents a new argument, based on his reconstruction of the principles that animated the Fourteenth Amendment, for the soundness of the result, though not the reasoning, of Roe v. Wade. That argument, however, serves the “larger purpose” of demonstrating “why the debate between originalism and living constitutionalism rests on a false dichotomy.” Once we “reject the assumption that fidelity to the [constitutional] text means fidelity to original expected application,” Balkin contends, we ought instead to agree that “constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text.” In maintaining such fidelity, moreover, “[e]ach generation makes the Constitution their Constitution by calling upon its text and its principles and arguing about what they mean in their own time.” It follows, Balkin claims, that “[t]he choice between original meaning and living constitutionalism ... is a false choice.” This short reply essay, to appear in a symposium devoted to Balkin's article, argues that Balkin mischaracterizes contemporary originalism and that his “false choice” claim cannot be maintained.