Balkin, "The New Originalism and the Uses of History"

Jack M. Balkin (Yale Law School) has posted "The New Originalism and the Uses of History." It is forthcoming in the Fordham Law Review. The abstract reads:

Central to the New Originalism is the distinction between constitutional interpretation and constitutional construction. Interpretation tries to figure out the Constitution's original communicative content, while construction builds out doctrines, institutions and practices over time. Most of the work of constitutional lawyers and judges is constitutional construction.

The distinction between interpretation and construction has important consequences for constitutional theory. In particular, it has important consequences for longstanding debates about how lawyers use history and should use history.

First, construction, not interpretation, is the central case of constitutional argument, and most historical argument occurs in the construction zone.

Second, although people often associate historical argument with originalist argument, the actual practices of lawyers and judges demonstrate that non-adoption history is as important as adoption history to constitutional construction.

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