Originalism in the Blogs: Jack Balkin on Calabresi & Rickert
Michael Ramsey
At Balkinization, Jack Balkin has a long and interesting post critiquing Calabresi & Rickert's Originalism and Sex Discrimination. From the introduction:
There are many interesting things about this piece. In this post, however, I want to focus on Calabresi and Rickert’s version of original meaning originalism. Calabresi and Rickert note early on that they agree with me that original meaning is not the same thing as original expected applications. This is a central claim of New Originalists like Randy Barnett, Larry Solum, and myself. At the same time, Calabresi and Rickert’s version of original meaning originalism differs from New Originalist approaches in important respects. Equally important, it also differs from the original meaning originalism of scholars like Michael McConnell, John McGinnis, and Michael Rappaport, as well as that championed by jurists like Antonin Scalia and Clarence Thomas.
... [A]s I shall now try to show, the way [Calabresi and Rickert] articulate original meaning orignalism—“thicker” than framework originalism but “thinner” than the approaches of McConnell and McGinnis and Rappaport—creates puzzles that they don’t adequately address.
