Republicanism and the Constitution of Opportunity

Jack Balkin explores the conceptual foundations of Fishkin and Forbath’s project, and the argument for understanding the tradition they sketch as a constitutional tradition. Balkin finds that their project fits well with, and indeed exemplifies, his general theory of living originalism. His argument centers on what he calls “republicanism,” a set of related principles that the founding generation correctly understood to be part of the ground on which the Constitution necessarily rests. Balkin argues that the affirmative legislative constitutionalism we describe and advocate is best understood as a form of “state-building constitutional construction”: it is how Americans build out the specifics of our constitutional order on the foundation of principles that include a commitment to a political economy compatible with republicanism.