Framework Originalism and the Living Constitution

Abstract

This article is the third in a series rethinking the relationship between originalism and living constitutionalism, and arguing that the two approaches are compatible rather than opposed. This compatibility helps us understand how legitimate constitutional change occurs in the American constitutional system.

The most plausible version of orignalism is framework originalism, which views the Constitution as an initial framework for governance that sets politics in motion, and that must be filled out over time through constitutional construction. In implementing the Constitution, later generations must remain faithful to the basic framework, which requires fidelity to original meaning but not the original expected application of the text. This permits a wide range of possible future constitutional constructions that implement the original meaning and that add new institutional structures and political practices not inconsistent with it.

Framework originalism leaves space for future generations to build out and construct the Constitution-in-practice. Living constitutionalism occupies this space. It explains and justifies the process of constitutional development. Thus, strictly speaking, living constitutionalism is not a theory of constitutional interpretation at all but a theory of constitutional construction.

Today people generally associate "living constitutionalism" with judicial decisions; but the political branches actually produce most living constitutionalism. Most of what courts do in constitutional development responds to these political constitutional constructions. Courts largely rationalize, legitimate, and supplement what the political branches do.

People often speak of living constitutionalism as an interpretive approach or method that judges could and should consciously follow. In fact, living constitutionalism does not offer particularized advice to judges. It is a theory of the processes of constitutional decisionmaking, and their basis in democracy and in the ideals of popular sovereignty. It focuses on the entire system of constitutional development, of which courts are only one part.

Keywords: Originalism, Living Constitution, Interpretation, Constitutional Construction, Constitutional Change

JEL Classification: K10