“Living Originalism in India? ‘Our Law’ and Comparative Constitutional Law” (2013) 25 Yale Journal of Law & Humanities 1-22.
Although Jack Balkin’s Living Originalism is about American constitutional practice, it raises two sets of interesting questions for scholars of comparative constitutional law. First, Balkin is largely silent on the role of comparative materials in living originalism. But the negative implication from his understanding of constitutions is that comparative materials are irrelevant to constitutional construction. Is it possible to reinterpret living originalism in a way that renders it comparatively engaged while still acknowledging the distinctiveness of the American constitutional identity? Indeed, can a comparatively inflected living originalism actually sharpen an awareness of national constitutional difference? Second, Balkin is self-consciously writing for an American audience about the nature of American constitutional practice. Does Balkin’s account of the phenomenology of constitutional argument have purchase outside the American constitutional tradition? If so, what can we learn by exploring the culture of constitutional argument in these foreign constitutional cultures?