Sandefur on Balkin:
On Positive Liberty, Tim Sandefur has a characteristically thoughtful response to Jack Balkin's Slate essay. Read the whole thing, but here is a taste:
The fact is, liberal talk of the "living" Constitution is not talk of a living Constitution at all, but talk of a dead Constitution—a Constitution whose clauses are to be manipulated, bent, stretched, or ignored outright so as to allow the regulatory welfare state to accomplish its aims. And if there are phrases like "herein granted" or "public use" (let alone "due process") that must be ignored in the process, why then, that's just fine. Is that living Constitutionalism? Or is it dead, null, and void Constitutionalism?At a recent program at the Heritage Foundation, I heard Ed Meese make the exact same terminological point about a "living" versus "dead" Constitution, and it appealed to me then. It still does.