Originalism versus Living Constitutionalism: The Conceptual Structure of the Great Debate
54 Pages Posted: 8 Feb 2019
Date Written: January 11, 2019
This Essay explores the conceptual structure of the great debate about “originalism” and “living constitutionalism.” The core of the great debate is substantive and addresses the normative question, “What is the best theory of constitutional interpretation and construction?” That question leads to others, including questions about the various forms and variations of originalism and living constitutionalism. Originalists argue that the meaning of the constitutional text is fixed and that it should bind constitutional actors. Living constitutionalists contend that constitutional law can and should evolve in response to changing circumstances and values. This Essay advances a metalinguistic proposal for classifying theories as originalist or living constitutionalist and suggests that some constitutional theories are hybrids, combining elements of both theories.
Keywords: constitution, constitutional theory, originalism, living constitutionalism, concepts, conceptions, metalinguistic
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