The Sedimentary Constitution

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.