Jack Balkin’s theory goes something like this: the Constitution and especially its more open-ended clauses require construction. The way that happens is that social movements move “off the wall” propositions “on the wall”—that is, suitable for judicial ratification. Whatever the normative attractions of this view, it’s a good description of the entrenchment of liberal positions of equal protection, abortion, and gay marriage—in fact, the full range of liberal commitments. But that’s not good enough for progressives. For them, the process must be irreversible and exclusive: conservatives can’t have respectable social movements, and their ideas must remain off the wall. That’s not Jack Balkin’s position (he explicitly rejects it), and so his friends have no more use for his living originalism than for any other kind (except maybe Bruce Ackerman’s, but that’s another story). The ACA presents the difficulty in neon lights: just as Living Originalism appears in print, a handful of libertarian nutjobs paint the broccoli argument on the wall and half the country (at least) seems to believe them. Small wonder Jack Balkin is getting a lot of liberal pushback.
This is, in a nut shell, the thesis of my book. I’m glad I’m on to something.
I had emailed someone who was attending the conference and asked her to ask about just this point. I’m sorry I was not able to attend. My attendance at the Constitution in 2020 conference at YLS in October 2009 (feels like forever ago) really kicked off my blog, and a lot of my academic pursuits.