Constructing a New American Constitution
Constitutional Commentary 34:1 (Fall 2010): 119-37
10 Pages Posted: 6 Jun 2012
Date Written: June 6, 2012
The distinction between constitutional interpretation and constitutional construction has been taken up in various places in constitutional and legal scholarship. In this article, I reintroduce the concept of constitutional construction and its potential uses, consider the extent to which courts might engage in constitutional construction, and examine whether the process of constitutional construction is avoidable or excludable with a sufficiently refined theory of constitutional interpretation.
Keywords: originalism, constitutional construction, judicial review, constitutional politics, popular constitutionalism
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