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date: 19 October 2020

Abstract and Keywords

Contemporary debates about constitutional interpretation in the United States seem fixated on what is called ‘originalism’, the view that, regardless of when some constitutional issue arises, guidance for resolving it is to be sought in ‘original’ sources, those which accompanied the promulgation of the constitutional language in question. The apparent alternative is ‘living constitutionalism’, in which a large dose of judicial discretion keeps constitutional interpretation in touch with a changing world. This is seen by originalists as relegating ill-defined responsibility to the doubtful authority of the judiciary. Originalists invoke the writtenness of the Constitution, the desirability of stability in the law, specific constitutional provision for amendments as signaling the acceptable mechanism for change, and the tenuous democratic credentials of life-tenured federal judges to depict originalism as the right approach to constitutional interpretation, and living constitutionalism as misbegotten. This article provides an overview of originalism and living constitutionalism. It first discusses constitutional language and original intention before focusing on the summing problem, degrees of generality of language, degrees of generality of intentions, unforeseen problems, and constitutional amendments.

Keywords: constitutional interpretation, United States, originalism, living constitutionalism, constitutional language, original intention, summing problem, constitutional amendments, law

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