Book contents
- Frontmatter
- Contents
- Preface
- Introduction
- 1 The Politics of Originalism
- 2 The Concept of a Living Constitution
- 3 Interpretivism and Originalism
- 4 The Paradox of Originalism
- 5 The Problem of Objectivity
- 6 The Epistemology of Constitutional Discourse (I)
- 7 The Epistemology of Constitutional Discourse (II)
- 8 The Ontology of Constitutional Discourse (I)
- 9 The Ontology of Constitutional Discourse (II)
- 10 Conclusion: The Political Character of Constitutional Discourse
- Index
2 - The Concept of a Living Constitution
Published online by Cambridge University Press: 14 May 2010
- Frontmatter
- Contents
- Preface
- Introduction
- 1 The Politics of Originalism
- 2 The Concept of a Living Constitution
- 3 Interpretivism and Originalism
- 4 The Paradox of Originalism
- 5 The Problem of Objectivity
- 6 The Epistemology of Constitutional Discourse (I)
- 7 The Epistemology of Constitutional Discourse (II)
- 8 The Ontology of Constitutional Discourse (I)
- 9 The Ontology of Constitutional Discourse (II)
- 10 Conclusion: The Political Character of Constitutional Discourse
- Index
Summary
One of the most familiar dimensions of the originalism debate in contemporary American constitutional theory is the conflict over the concept of a “living Constitution.” Justice Antonin Scalia, for example, writes that “the Great Divide with regard to constitutional interpretation is not that between Framers' intent and objective meaning, but rather that between original meaning (whether derived from Framers' intent or not) and current meaning.” Despite claims that originalism is “neither conservative nor liberal, neither right nor left,” originalism is typically considered a conservative jurisprudence that is committed to rejecting the legitimacy of the concept of a living Constitution. Nonoriginalism, by contrast, is commonly understood to be the very theory of a living Constitution. The originalism debate can thus be neatly encapsulated in terms such as those of commentator Gregory Bassham:
Conservatives, such as Robert Bork, Chief Justice William Rehnquist, Justice Antonin Scalia, and former Attorney General Edwin Meese, have argued that constitutional meaning is forever fixed by the original intent of the framers and that courts should hold government action unconstitutional only if that action clearly violates that original intent. Liberals, such as Ronald Dworkin, Michael Perry, Leonard Levy, and retired Justice William Brennan, have countered that the Constitution is a living document and that courts should interpret its broadly based guarantees in the light of changing circumstances, values, and needs.
On the conventional originalist account, “living” is counterposed to “fixed” or “permanent.”
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- Information
- Publisher: Cambridge University PressPrint publication year: 2005