Originalism and the Living American Constitution

, 2011; online edn, Cornell Scholarship Online , 18 Aug. 2016 ), https://doi.org/10.7591/cornell/9780801447938.003.0002, accessed 4 Sept. 2024.

Abstract

This chapter discusses the clash between originalism and living constitutionalism. It considers variants of originalism, with particular emphasis on unsolved problems and continuing disagreement. It suggests that originalism has limited capacity to stem a constant flow of contemporary values into the judicial decision-making process, while a living Constitution is effectively irresistible. It also examines judicial interpretation of the Constitution and the dynamics of constitutional adjudication, along with the views of many originalists regarding the authoritativeness of specific original intentions or meanings (or expected applications) that attended general constitutional language. The chapter concludes with the argument that living constitutionalism is inevitable, at least once a far-ranging judicial review is in place.

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