The Sedimentary Constitution

Vanderbilt Law School, Joe C. Davis Working Paper No. 99-6

87 Pages Posted: 10 Feb 1998

See all articles by Barry Friedman

Barry Friedman

New York University School of Law

Scott Smith

affiliation not provided to SSRN

Date Written: February 1998

Abstract

This paper examines the use of history in constitutional interpretation. The first part is a historiography explaining how throughout this century there has been a tension between originalism and living constitutionalism, revealing the problem of fidelity: how to keep the Constitution current with the times. The second part argues that neither originalism nor living constitutionalism is faithful to the idea of a constitution, or to history. The task of constitutional interpretation is to reconcile longer held, deeper values with present preferences. In order to do so, this paper argues (a) that constitutional interpreters must take all our history into account, not just that of the framing, and that (b) more often than not fundamental values will be revealed by the more recent history. The final part tackles hard questions of reconciliation, contestability of history, and the proper role of judicial interpreters.

Suggested Citation

Friedman, Barry and Smith, Scott, The Sedimentary Constitution (February 1998). Vanderbilt Law School, Joe C. Davis Working Paper No. 99-6. Available at SSRN: https://ssrn.com/abstract=58536 or http://dx.doi.org/10.2139/ssrn.58536

Barry Friedman (Contact Author)

New York University School of Law ( email )

40 Washington Square South
Room 317
New York, NY 10012-1099
United States
212-998-6293 (Phone)
212-995-4030 (Fax)

Scott Smith

affiliation not provided to SSRN

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