The Curious Concept of the 'Living Tree' (or Non-Locked-In) Constitution

Abstract

In this working paper the author defends originalism as the least-bad approach to interpreting constitutions of the sort the United States and Canada have. He does this by starting with a parliamentary sovereignty system, such as that of the United Kingdom or New Zealand where the elected legislature is legally unlimited in what it can do. He finishes with an American or Canadian-style written constitution with an entrenched bill of rights. To make this journey, the author argues, a set of assumptions need to be made in order to have any prospect of convincing sufficient numbers of citizens to support the move. Those assumptions all point towards some version of originalism as the best, or least bad, approach to interpreting this new written constitution. In fact were other approaches to interpreting it - those such as 'living constitutionalism' or Dworkinian best-fit interpreting - made explicit at the time as the approach that would later be used, the author argues that proponents of the new constitution could never garner sufficient support to have it adopted. Orginalism is thus tied to democratic legitimacy and preferable for that reason.

Keywords: constitutionalism, orginalism, interpretation, democracy, constructionism