Amending the Law of Constitutional Interpretation

19 Pages Posted: 10 May 2018 Last revised: 27 Jun 2018

Andrew Coan

University of Arizona, James E. Rogers College of Law

Date Written: May 9, 2018

Abstract

In recent years, the law of interpretation has received a welcome flurry of attention. Much of this attention has focused on the law of U.S. constitutional interpretation circa 2018 and whether that law should be understood as embracing originalism—or any other specific approach—or whether it is better understood as broadly open-textured or otherwise pluralist. This symposium essay takes a different tack. As a thought experiment, it proposes a constitutional amendment explicitly mandating a nonoriginalist approach to constitutional interpretation. This thought experiment has a number of interesting implications for both originalism and nonoriginalism and for the law of interpretation more generally. Most fundamentally, it suggests that constitutional theorists should think more deeply about the nature and grounds of constitutional decision-makers’ presumptive obligation to follow the law.

Keywords: Originalism, Nonoriginalism, Constitutional Interpretation, Interpretation, Positive Turn, Positivism, Constitutional Amendment, Living Constitutionalism

Suggested Citation

Coan, Andrew, Amending the Law of Constitutional Interpretation (May 9, 2018). 13 Duke Journal of Constitutional Law & Public Policy 83 (2018); Arizona Legal Studies Discussion Paper No. 18-19. Available at SSRN: https://ssrn.com/abstract=3176144

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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