Bench Memos

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A Correction


I haven’t gone to the “Balkinization” blog to see whether Jack Balkin has any rejoinder to my long post from last night (life is short, and I don’t spend much time there).  So what follows is prompted by my own rereading of what I wrote.  On one point I must withdraw a criticism because I may have misread a sentence in Balkin’s “Abortion and Original Meaning.”

He writes, in a sentence I partially quoted, “If these assumptions are correct [that the Constitution is binding law and that we want to know what its drafters were trying to achieve], then we look to the original meaning of the words because if the meaning of the words changed over time, then the words will embrace different concepts than those who had the authority to create the text sought to refer to.”

I italicized the phrase “if the meaning of the words changed over time” and read it as representing Balkin’s argument that the Constitution has no durable meaning from the framing of its provisions to the present.  Looking again, I see that it does not represent that argument, but could mean virtually the opposite, and I apologize for my misunderstanding.  I still think that is Balkin’s argument, and I believe that Balkin only seems to but does not really contradict it here.


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