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04/07/2016

Nelson Lund: The Corruption of Constitutional Conservatism
Michael Ramsey

Nelson Lund (George Mason University School of Law [now the Antonin Scalia School of Law!] has posted The Corruption of Constitutional Conservatism (Claremont Review of Books Digital, February 29, 2016) on SSRN.  Here is the abstract:    

This very short essay elaborates on Justice Alito’s comment that the Supreme Court’s decision on same-sex marriage in Obergefell v. Hodges, is evidence of “the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.” One contributor to this corruption has been the success of Jack Balkin’s “living originalism,” which flies the false flag of originalism in order to advance the progress of living constitutionalism. Balkin has begun to enlist prominent originalists, including Steven Calabresi, in this operation, which will make it harder for the next generation of law students to learn what genuine originalism is.

The essay -- which is indeed "very short" but also very substantive -- is a particularly sharp critique of Professor Calabresi's recent work.  I think it would be more accurately titled "The Corruption of Originalism," however.  I would resist the conflation of originalism and "constitutional conservatism," whatever that may mean.