Living Constitutional Theory

29 Pages Posted: 14 Aug 2016

See all articles by Andrew Coan

Andrew Coan

University of Arizona, James E. Rogers College of Law

Date Written: August 12, 2016

Abstract

Recent work has questioned the dichotomy between living constitutionalism and originalism on the ground that our understanding of what is “original” is itself a changing phenomenon. It is not just understandings of constitutional history, however, that evolve over time. It is also understandings of the role that history ought to play in constitutional interpretation and adjudication. Indeed, the two evolutionary processes are intertwined in complex ways. In this Essay, I sketch a brief, stylized narrative explaining how this dynamic has played out in U.S. constitutional theory over the past five decades. The upshot is that constitutional theory, no less than constitutional doctrine or constitutional history, lives. On some level, everybody understands this. But at any given time, it is far from the forefront of consciousness for most constitutional theorists. This Essay is a reminder and a call for greater self-consciousness.

Keywords: living constitutionalism, originalism, history, interpretation, constitutional theory

Suggested Citation

Coan, Andrew, Living Constitutional Theory (August 12, 2016). Arizona Legal Studies Discussion Paper No. 16-25. Available at SSRN: https://ssrn.com/abstract=2822517 or http://dx.doi.org/10.2139/ssrn.2822517

Andrew Coan (Contact Author)

University of Arizona, James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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