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Hastings Constitutional Law Quarterly

Authors

Mark S. Stein

Abstract

In this brief essay, I address the way in which "new originalists" Jack Balkin and Lawrence Solum use the Domestic Violence Clause in Article IV, Section 4 of the Constitution to support their theories. Balkin uses the Domestic Violence Clause to provide an example of an impermissible departure from original meaning: Surely, he claims, it would be wrong to interpret the constitutional term "domestic violence" as referring to spousal abuse. Solum uses the same example to support his thesis that the semantic meaning of the Constitution is fixed at the time of origin.

In fact, the constitutional term "domestic violence" could evolve so that an application of the Domestic Violence Clause to spousal abuse no longer seems absurd. Reflection on this possibility yields some insights about originalism and original expected applications.

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