Episode 6 of Culture Wars Radio is now available to our patrons and will be available to the public on Monday morning. In this episode, we spend a small amount of time on Trump’s embarrassing performance at the NATO summit, then move on to a long discussion about originalism as theory of constitutional interpretation.
We try to explain the varieties of originalism, their flaws and validities, in a way that those who aren’t legal scholars can understand. There is a good deal of misunderstanding out there about originalism, mostly because it is so closely identified with modern conservative politics, but there’s nothing intrinsic in it that requires such an affinity. There are liberal versions of originalism as well. One that I particularly favor is Jack Balkin’s “living originalism,” which makes originalism a form of legal realism and provides a theory of constitutional legitimacy based on what is called “framework originalism.”It just so happens that my co-host, Dan Ray, was a student of Balkin’s in law school. Dan calls his theory the “text and principles” approach, and that’s a pretty good description of it. Living originalism recognizes that there are different types of text in the Constitution, some of which are quite clear and obvious — you have to be 35 years old to be president, period — and some of which are much more abstract. Where the text is clear and unambiguous, decisions are easy. Where the text requires greater abstraction, where it asks questions like “what is freedom of speech” or “what are the requirements of equal protection,” we must apply broad principle as being aspirational and try to apply it in ways that make those principles a reality in the lives of those subject to the constitution.
Anyway, hope you enjoy this episode. Please sign up as a patron of the show if you feel it is worthy of your support.