Balkin offers an example: Does the constitution give women any degree of equality? If we use original expected applications, the answer is no. The framers of the 14th Amendment did not want to upset existing coveture law. But they wrote the due process, equal protection, and privileges or immunity clauses. The purpose of these clauses was egalitarian, and they spoke in broad phrases growing out of the abolitionist movement. How can we be faithful to the text? How do we apply the principles they enacted into law? If you think about original meaning in that way it can comprehend many of the most valuable features of our constitutional tradition over time. Scalia's view is that constitutional development is mistaken precedents. But Scalia now takes the position that important features of the American republic were mistakes. This feature of Scalia's view is opposed to Balkin's view that our job is figure out how the constitutional principles apply to us. This difference suggests that the new originalism is better able to account for American constitutional development. . . .

Balkin is doing hugely important work here. Not only is this issue fascinating, I hope folks realize just how important Balkin's theory is. This is my favorite current legal subject.