Yale Law Professor Jack Balkin didn’t win friends when he announced that (1) he is now a constitutional originalist and (2) the original meaning of the Fourteenth Amendment protects the right to abortion. His claim to membership in the originalist club brought forth a small army of eager bouncers, who were sure that originalism couldn’t possibly defend the paradigmatic departure from the Constitution’s original meaning.
Balkin has indeed posed a radical challenge to the vision of law that drives the originalists – more radical than he is willing to admit. His theory is in such deep tension with a commonly held vision of the rule of law that his argument is, to put the point precisely, disgusting. But that doesn’t mean that he is wrong.
I discuss Balkin’s article, Abortion and Original meaning, at length in my new article, Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment
I find Professor Balkin to be quite curious, though I would never use the word disgusting. I had some lengthy chats with him during the Constitution in 2020 Conference at Yale Law school (see live blog here). He is a thought-provoking, sincere scholar, who provides a formidable foil on the Left.
Though-provoking read, as I scramble to add some footnotes from this article to Pandora.