Authors: Sophie Larson
Mentor: Filipa Paes. Filipa is currently a doctoral candidate in the Faculty of Law at the University of Oxford.
Abstract
Scholarly theorizing on constitutional interpretation, which is the way that courts interpret constitutional texts, has seen much development in the past decades. Still, there is little agreement on what theory provides the best reasoning for the process of interpreting constitutional documents. This article reviews three theories of constitutional interpretation—Originalism, Textualism, and Living Constitutionalism—with the specific ambition of assessing each theory against the normative aim of promoting democratic legitimacy. First, as a theory of constitutional interpretation, Originalism emphasizes the use of the original meaning of a constitutional provision. Textualism, on the other hand, focuses on the literal meaning of words, and argues that this is what should determine its true meaning, regardless of the provision’s history and context. And more recently, Living Constitutionalism roughly argues that meanings should change and adapt alongside society. All of these methods have faced legitimate criticism from legal scholars, and so, the ambition of this article is not to provide a unanimous verdict on the best theory of constitutional interpretation. Rather, the article’s ambition is to explore each theory having particular regard to each theory’s impact on the democratic legitimacy of the interpretation of constitutional texts.
Introduction
Constitutional interpretation refers to the way that courts interpret constitutional texts. As the meaning of the provisions in a constitution can be vague (as indeed might be the case with any text), issues might arise over what a text is truly saying, and thus, as to what the best method of interpretation is.[1] Legal scholars have long theorized about the best approach to constitutional interpretation. The reason this is a matter worth theorizing about is because doing so provides for an understanding of courts’ reasoning when deciding the meaning of a state’s constitution, in this way justifying and legitimizing such decisions. An unjustified court decision, that is a decision that lacks proper motivations, might violate the rights of those involved.[2]
Within constitutional law scholarship one can find three main theories of constitutional interpretation: Originalism, Living Constitutionalism, and Textualism. In Section 2, the article offers an overview of the theoretical background of each of these theories as well as a summary of recent work. In Section 3, the article briefly reviews the impact of constitutional interpretation methodology on democratic and judicial legitimacy so as to provide readers with an understanding of the wider debate within which theorizing on constitutional interpretation sits and the motivations of different scholars in defending each of the theories outlined in the previous section of the article.
A Review of Current Theorizing on Constitutional Interpretation
Originalism
The Theory and its History
Despite the lack of academic or judicial consensus as to the best approach to constitutional interpretation, Originalism has received significant criticism as well as support since its introduction in the 1970s. In its inception, the theory was framed as having the objective of stabilizing constitutional law by grounding constitutional interpretation in the Framers’ intents.[3] Indeed, as put by Kessler and Pozen, ‘contemporary originalist theory arose out of conservative frustration with the “activist” constitutional rulings of the Warren and Burger Courts’.[4] With time, however, theorizing on originalist approaches to interpretation evolved from emphasizing the original intentions of the drafters of the constitutional text, into placing the emphasis instead on the original public meaning of the text.3
Although there is disagreement amongst originalist scholars on various fronts, there are two main points of agreement. First, most theorists agree that the ‘linguistic meaning of each constitutional provision was fixed at the time it was adopted’.[5] Second, there is general agreement amongst originalists on the idea that constitutional practices are and should be ‘committed to the principle that the original meaning of the constitution [as it] constrains judicial practice’.[6] And so, it is generally agreed, amongst originalists, that constitutional meaning is fixed at the time of adoption and that the discoverable meaning of a constitution has legal significance and can be authoritative.[7]
Some Theoretical Difficulties and Solutions
Despite wide agreement on some critical points, contemporary originalists still disagree over several aspects of their theory. For example, there is scholarly disagreement as to what features—framers’ intent, ratifiers’ understanding, and public meaning—require fidelity to; why fidelity is required; and to whom this interpretative obligation is binding.[8] A further factor leading to inner disputes is the obscurity surrounding the term ‘Originalism’. At the end of the day, not even originalists seem to agree on what the true meaning of the name of their theory is.[9] There are many different kinds of originalism that can be categorized in several different ways. For example, some strands of Originalist theorizing focus on the object of inquiry and can be classified as Framers’ intent originalism, ratifiers’ understanding originalism, and original meaning originalism.[10] As a consequence of this uncertainty, scholars face the challenge of potentially speaking over each other, given that contemporary originalists but also their opponents (so-called ‘living constitutionalists’) may very well have misunderstood the claims defended by their opposing side, with each side making assumptions about the other.[11]
As a theory of constitutional interpretation, Originalism faces a further difficulty. The presence of multiple authors for one single constitutional document provokes a new challenge in the interpretation of the constitutional text when one’s task is to uncover a group's original intent. It is unclear how one can “find” the original intent of a group of authors. After all, each individual drafter or ratifier was likely to have a different intent at the time of the writing of the constitutional provision, making it equally likely that there was never a shared intent at all.[12] Furthermore, as McGinnis and Rappaport note, ‘the problem of determining intent extends beyond interpreters to the legislators themselves. If legislators cannot easily determine the meaning of a provision upon which they are voting, this makes it all the less likely that they will share a common intent with other legislators”.[13]
While some issues with Originalist thinking are widely recognized, Sachs is amongst the legal scholars who argue that Originalism is a robust theory of constitutional interpretation since it forces courts to keep ‘legal rules in place until they’re lawfully changed’ and by doing so, it puts constraints on courts that align with the ideal of the rule of law.[14] The rule of law is the principle that all are subject to follow the same rules which are made known, that all ought to be given the same treatment in legal procedures, and, for some, the principle according to which international human rights principles must be upheld.[15] Most originalists agree that if the meaning of a law is obvious or can be clearly traced back to its origins, it must be followed, for that is what compliance with the rule of law and its principles of clarity and consistency require. And so, according to prominent and the original originalist thinkers, including Robert Bork and Edwin Meese,[16] originalist ideals of interpretation promote compliance with the rule of law and other constitutional principles as they bind judges to the text’s original meaning, leaving less room for their own personal opinions to interfere. From this perspective, what is often seen as the main issue with Originalism, which is that it requires the living to ‘submit to the dead hand of the past’, ultimately works as a strength.[17]
Originalism, however, is often challenged by theorists who believe that Originalism is self-disputing when one takes into account that the Framers may not have intended for the constitution’s original meaning to be followed.[18] Yet, as McGinnis and Rapport show in their book Originalism and the Good Constitution, published in 2013, the debate has turned since the days of Bork and Meese: They argue that Originalism does not handicap constitutional change but, instead, it is the best interpretive theory in order to allow the current government to turn their values into laws.[19] The justification they propose for originalism is based on the constitution's supermajority process. Supermajoritarian processes, where more than half have to be in agreement, are according to the theorists the most reliable way of creating a socially beneficial constitution, and the benefits of this process will be lost if interpreters were to be permitted to stray away from the original meaning of texts.[20] After all, these processes exist to make constitutional change difficult and consequently, dependent on democratic consensus.
Textualism
The Theory and its History
Textualism is a method of constitutional interpretation according to which the interpretation of constitutional documents should be based on what the statute directly states rather than on its context or legislative history.[21] Justice Anton Scalia, a key figure within Originalism, brought Textualism to the forefront as well. Indeed, at first sight, the theories might seem to defend quite similar ideas. Yet, the key idea defended by textualists is that legislative history and the ‘purposiveness’ of a provision should not be attended to when one is interpreting a constitutional text (or any statutory provision for that matter).[22] The Supreme Court has often consulted the legislative history of a statute in an attempt to discern, affirm, or rebut the meaning often resulting in the conclusion that legislative history conflicted with its ordinary meaning.[23] Textualists reject this methodology.
The basic outline of Textualism as set out by Justice Scalia, has three main points. First, a textualist looks for an objective intent. Second, textualists do not enforce any subjective intent. Third, legislative history should not be authoritative as to the statute's meaning.[24] Scalia argued against interpretive methods in the case of Blanchard vs. Bergeron on the grounds that reliance on legislative history is an unreliable indicator of legislative intent.[25] He continued to argue against considering legislative history throughout his time on the bench, advocating that the goal of a judge in applying a statue is to implement the meaning of it, and not its history.[26]
Some Theoretical Difficulties and Solutions
Textualism does not come without its problems, however. One concern is that without the consultation of history, texts cannot, on their own, specify the meaning which the written words represent or signify. In other words, the meaning of a text cannot always be discerned without reference to an author or to a context. And so, whilst textualists see the issue of identifying the intended language through their method as unproblematic, their opponents do not. Critics of Textualism believe that the well-known and public meaning of a word changes depending on the circumstances of the text's origins. For this reason, critics hold that the true meaning of a word in a text cannot be identified without reference to the author's intent nor the context within which the text was written and so, there must be some consideration of the author and the provision’s context in order to attribute meaning to certain statements.
Alexander and Prakash build upon their previous argument against Textualism by outlining four further arguments. First, texts cannot declare the language of which they are written in.[27] For example, an English speaking textualist would interpret the word “canard” to mean fib, but a French speaking textualist may interpret the same word to mean a duck. Both interpretations are the correct and common public meaning but result in a contrasting outcome. Second, “texts cannot declare that they are texts”. One cannot look at symbols on a page and assume that to constitute a text without knowledge of the author and their intended meaning. Third, “meaning cannot be autonomous from intent”.[28] There must be an author for there to be meaning in words, and if there is an author, they must have intent for the words to hold meaning. Fourth, “texts can have ‘deviant’ meanings because those meanings are intended”.[29] Words’ meaning develops through its use in reference to one thing. In the theoretical case of an author speaking gibberish, the words still mean what the author intends to say.[30]
On the other hand, defenders of Textualism argue that the application of their theory leads to the promotion of the rule of law ideal (which the article briefly explains above), thus making Textualism appealing to many lawyers. The reason behind this belief is that, they argue, Textualism delivers accessible and clear meanings of legal texts which helps achieve predictability, coordination, efficacy, in the law, whilst placing constraints on judges and their reasoning.[31] Indeed, the textualist method remains influential as the emphasis it places on specific words and structure, such as in the Bill of Rights, allows for a steady method of interpretation.[32]
Much like Originalism, Textualism inhibits judges from interpreting constitutional texts by means of their own opinions, but it also raises questions as to what a court is to do when the outcome of their interpretation leads to immoral consequences. Textualism can be distinguished from Originalism by focusing on the public meaning of the text instead of the original intent or original public meaning.[33] In addition, the theories can be distinguished by attending to the approaches each favors. Originalists prefer a methodological approach—a systematic method of conducting research—while textualists favor a rule-based approach.[34] The method of Textualism creates a strict method of how to interpret meaning, while Originalism is an overall and broad ideology which simply defends that the original intent should be upheld.[35]
Living Constitutionalism
The Theory, its Many Forms and its History
Living Constitutionalism is a contemporary theory of constitutional interpretation, and according to some scholars it is known to be a more progressive and liberal method of interpretation.[36] Still, this theory of constitutional interpretation has received strong scholarly and judicial support since it allows for the meaning of constitutional documents to follow in the steps of society, by providing the opportunity to have constitutional texts reflect changes in collective morality over the years without lengthy processes of constitutional change. Living Constitutionalism theorists defend the idea that constitutional texts can and should respond to circumstances and values as these change.[37]
The theory was developed with the ambition to rationalize changes in the interpretation of a single, unchanged, text, thus providing for a new ideal of contemporary constitutional law scholarship.[38] Ultimately, the idea behind this theory is that constitutional texts are “living” documents—and so, not fixed at a particular time—which ought to be read as such. In other words, according to the living constitutionalist, the meaning of a constitutional text changes in accordance with the ordinary public meaning of the time at which the constitution is being interpreted (rather than written).
This theory of interpretation has taken many different forms, each having slightly different focuses. Solum (2019) offers a helpful breakdown of the different strands of Living Constitutionalism. For example, there is constitutional pluralism, which is ‘the view that law is seen as a complex argumentative practice with plural forms of constitutional argument’.[39] There is also the idea that Living Constitutionalism allows for a moral reading, which is ‘the view that the constitutional law is the outcome of that constructive interpretation of the legal materials that makes the law the best that it can be’.[40] There is even a sub-theory of Common law constitutionalism according to which ‘the content of constitutional law should be determined by a common law process’.[41] The list goes on. Popular constitutionalism defends the idea that ‘“the people” can legitimately change the Constitution through processes such as transformative appointments that do not formally amend the text’.[42] Extranational Constitutionalism ‘holds that constitutional norms outside of a national legal system permit judges to adopt constitutional norms that invalidate, alter, or supplement a national constitution’.[43] Moreover, according to scholars who defend the idea of Multiple Meanings, there are multiple linguistic meanings that can be found in the constitution and the constitutions’ meaning should be chosen on a case-by-case basis.[44] Another further view is titled Super-Legislature, according to which the Supreme Court has an ongoing constitutional convention and has the power to adopt amending constructions of the constitutional text.[45] And there is also a view that goes by Thayerianism, first defended by Thayer, which requires deference to Congress.[46] Thayer argued that ‘a court cannot always, and for the purpose of all sorts of questions, say that there is but one right and permissible way of construing the constitution’,[47] rather, to be able to make changes to the constitutional provision the court must humbly pass the task on to Congress.
More recently, Sunstein defended a view of Living Constitutionalism according to which it is the liberal idea that the constitution should be interpreted to allow individuals and groups to experiment with different ways of living.[48] In Sunstein's view, Living Constitutionalism prizes diversity and plurality while opposing authoritarianism; it highlights the importance of encouraging varieties of character and does so because it values the individuality of every person.
Living Constitutionalism appears to ultimately reject Originalism in quite a strong manner, since the latter values maintaining original meaning, and the former values an evolving meaning with time.[49] Yet, some theorists argue that Living Constitutionalism and Originalism are compatible rather than opposed. The version of Originalism which is most compatible with Living Constitutionalism is Framework Originalism. According to framework originalists, the original meaning of provision must be maintained, yet this view still permits a wide range of possible interpretations: the framework of originalism leaves space for future methods to build. This space, which justifies and explains vague clauses of constitutional texts, is where Living Constitutionalism is allowed to live within originalist thinking.41
Despite having its critics, Living Constitutionalism cannot be fairly described as an ‘out-of-touch liberal theory’, rather, as Strauss puts it, it is better seen as a ‘mainstream tradition of American jurisprudence’ and as a common-law approach based on precedents which prevent judicial rulings from becoming abstract and leaves interpretation up to the judiciary's own interpretations and opinions while allowing modern demands to be met without the constraints of the long dead hands of the Framers.[50] Strauss further argues that as judicial decisions are made, the constitution’s text adapts, potentially even contradicting the original intent of its Framers. Though this might seem a radical idea, it has been through this method, he defends, that ‘some of [the United States’] most profound accomplishments [have been produced]: the end of racial segregation, the expansion of women's rights, and the freedom of speech’.[51]
Defenders of Living Constitutionalism, then, argue that a crucial strength of adopting this theory is that it allows for judicial powers to ‘develop and change the content of constitutional guarantees’,45 opening up the space for a state’s constitution to evolve. Contrary to first appearances, the Living Constitutionalist approach suggests a gradual change on a case-by-case basis instead of abrupt changes in the interpretation of constitutional texts. Although courts should be creative, this creativity must be constrained within constitutional limits, Kavannaugh argues.[52]
Although Antonin Scalia was a proponent of Originalism and Textualism, which recall are often seen as Living Constitutionalism’s theoretical opponents, some scholars have argued that Scalia himself was a strong practitioner of Living Constitutionalism in his jurisprudence. This, on the grounds that he suggested that the meaning of the constitution evolves over time, through a process similar to the evolution of common law. This was particularly visible in Scalia’s opinion in Lujan vs. Defenders of Wildlife.[53] In the Lujan case, the court was asked whether Congress has the power to grant citizens standing to require the Secretary of the Interior to enforce the Endangered Species Act. In answering this question, the court turned an eye to the constitutionality of other statutes that purport to give causes of action to citizens seeking to enforce the law, especially in the environmental area, demonstrating the use of a theory akin to Living Constitutionalism.[54]
Although Living Constitutionalism has several advantages, it is prone to some criticisms too. In particular, a major point of concern of Living Constitutionalism is that the constitution may, in the end, not be truly binding, since according to the theory the meaning of constitutional texts is ever evolving. In addition, as new strands of Originalist theorizing arise, the line that allows us to distinguish between Living Constitutionalism and other theories of constitutional interpretation has started to disappear. More specifically, the distinction between Living Constitutionalism and Framework Originalism is getting harder and harder to draw, given that Framework Originalism proposed a method which combines attention to original meaning with the flexibility of future changes.[55]
The Impact of Constitutional Interpretation on Democracy and its Legitimacy
Having outlined three prominent theories of constitutional interpretation, the present section of the article will turn an eye to democratic legitimacy to briefly assess how each theory impacts this key principle. Put simply, a democracy is a way of government in which supreme power is invested in the people, either directly, or indirectly through representatives elected by the people.[56] Democracy and democratic legitimacy are interlinked. This is because democracy can contribute to the legitimacy of governmental and public bodies’ acts and conduct, as through the appointment of elected representatives, the views of the people are seen as being presented and incorporated in the standards that guide this kind of public decision-making, strengthening the legitimacy of public bodies; ultimately, ‘it makes the exercise of power responsive to people’s views’.[57]
According to at least some versions of Living Constitutionalism theorizing, the focus of constitutional interpretations should be on moral choice,[58] and so, one can argue that it bears relation to democratic legitimacy. This is because democratic legitimacy is based on loyalty to and acceptance of the principles of the constitution, and Living Constitutionalism aligns with that idea, as it argues in favor of maintaining these principles as principles—rather than strict rules. In other words, and as articulated by William Brennan, ‘our acceptance of the fundamental principles [of the constitutional text] has not and should not bind us to those precise, at times anachronistic, contours’; instead, the process of constitutional interpretation should welcome readings of the text that are loyal to the principles in the constitution, but not strictly restricted to the original text.[59] For this reason, Solum has argued that different theories of Living Constitutionalism, might be more or less promotive of democratic legitimacy. Indeed, Solum finds that in comparison with Common Law Constitutionalism and the Moral Readings Theory, Originalism is better supported by the value of democratic legitimacy; but, he argues, the same is not the case with other Living Constitutionalism theories, such as Thayerianism and Popular Constitutionalism, which he finds to be in better alignment with democratic legitimacy.[60]
When it comes to Originalism, both critics and defenders argue that a theory of constitutional interpretation should be consent-based.[61] Yet, critics make use of this argument to defend the idea that the Originalist method is defective–with regards to having limited legitimacy in a democratic society–because, since the constitution was written hundreds of years ago, the nation’s current citizens have not consented to it. For this reason, critics hold that the constitutional text’s original meaning should not be upheld, but instead, a modern interpretation of it. However, as Boykin defends, while it is true that not all citizens have consented to their nation’s constitutional texts, the same can also be said for the government as well, and so, if actual consent is the standard of legitimacy, then this would mean there is no fully legitimate government across any nation.[62] No government has fully gained the consent of every citizen prior to governing them. Thus, by the same standard, this logic cannot apply to the critique of Originalism. Furthermore, when one takes the rule of law to be the common basis of virtue in the legal system, interpreting a legal text with fidelity to its original purpose proves a good place to start and “integrity in interpretation justifies originalism in itself”.[63]
Furthermore, Originalism can also be considered to support democratic legitimacy as it enforces the constitutional decisions of living Americans, since the opinions of the Framers written in the constitution are still supported by Americans living today; and in the case that they are not, the people can voice their interest in having a constitutional provision changed according to the appropriate procedure for amendment. In this way, Originalism has the ability to enforce constitutional convictions of living Americans.[64] Moreover, judges should not be the sole interpreters of the meaning of constitutional texts since they are not elected officials, and thus their opinions do not reflect those of the common public.[65] Indeed, unlike legislators, the role of judges is not to be representative of the people, but to apply the law as it is.
Textualism, in turn, can be considered to undermine democratic legitimacy. One reason for this is that it brings to light the differences between textual interpretative commitments and how ordinary people perceive and understand legal texts.[66] A further reason stems from the fact that textualism treats rights as “positive law rather than principles of self-determination.[67] In addition, textualism undermines democratic legitimacy because it gives judges the final say, instead of congress.[68] This contrasts arguments by others, previously mentioned, that textualism promotes the rule of law.
Conclusion
This article’s discussion of the three main theories of constitutional interpretation (that is, Textualism, Living Constitutionalism, and Originalism) demonstrates that the debate as to the best way to interpret constitutional texts is still very much alive. Originalism, introduced in the 1970s, initially urged courts to attend to the original intention behind the constitutional text. Overtime, Originalism has evolved, to the point where originalist theorists have started to put emphasis on original meaning (rather than intention). Through its emphasis on fidelity towards original meaning, Originalism can be considered to enhance democratic legitimacy by providing a set basis of framework for the interpretation of constitutional provisions. Textualism, on the other hand, advocates that courts ought to enact what the text directly states, instead of considering context or legislative history. Finally, Living Constitutionalists argue that the constitutional texts can and should change and adapt overtime in response to current issues. These three theories can be contrasted, as this article has shown, but they ultimately share some similarities. One of the key similarities that can be found in the literature is the fact that theorists, no matter their ‘camp’, share a concern with ensuring that the interpretation of constitutional texts is legitimate, that is, is grounded on reasons so as to not impair democracy.
Cases
Blanchard v. Bergeron, 489 U.S. 87 (1989)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
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Endnotes
[1] Ribeiro G D, (2022) ‘What is Constitutional Interpretation?’ International Journal of Constitutional Law, Vol. 20(3), 1130–1161, 1130.
[2] See, e.g., Choudhry S, (1999) ‘Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation’ Indiana Law Journal, Vol. 74, 819-892, 824: ‘...because of their central role in the validation of public power, [courts] are equally under an obligation to engage in a process of public justification for their own decisions’.
[3] Kessler J and Pozen D E, (2016) ‘Working Themselves Impure: A Life Cycle Theory of Legal Theories’ University of Chicago Law Review, Vol. 83, 1819-1892, 1820.
[4] ibid, 1844.
[5] McGinnis J and Rappaport B, (2007) ‘A Pragmatic Defense of Originalism’ Northwestern University Law Review, Vol. 101, 1.
[6] ibid.
[7] Whittington K E, (2013) ‘Originalism: A Critical Introduction’ Fordham Law Review, Vol. 82, 375-409, 375.
[8] Berman M N, (2009) ‘Originalism is Bunk’ NYU Law Review, Vol. 84(1), 1-96, 1.
[9] Solum L B, (2011) ‘What is Originalism? The Evolution of Contemporary Originalist Theory’ in The Challenge of Originalism: Theories of Constitutional Interpretation (Cambridge University Press) 12.
[10] Baker L, (2008) ‘Constitutional Ambiguities and Originalism: Lessons from the Spending Power’ Northwestern University Law Review, Vol. 103(2), 495-548, 497-478.
[11] Solum L B, (2011) ‘What is Originalism? The Evolution of Contemporary Originalist Theory’ in The Challenge of Originalism: Theories of Constitutional Interpretation (Cambridge University Press) 12.
[12] Brest P, (1980) ‘The Misconceived Quest for the Original Understanding’, B.U. L. REV., Vol. 60, 204.
[13] McGinnis J and Rappaport B, (2009) ‘Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction’ Northwestern University Law Review, Vol. 103(2), 751–802 760.
[14] Sachs S E, (2015) ‘Originalism as a Theory of Legal Change’ Harvard Journal of Law and Public Policy, Vol. 38, 841.
[15] Gowlland-Debbas V and Pergantis V, ‘Rule of Law’ in Chetail V. (ed.) Post-Conflict Peacebuilding: A Lexicon (OUP, 2009) 320-336.
[16] See Meese E, (1996) ‘A Return to Constitutional Interpretation from Judicial Law-Making’, N.Y.L. SCH. L. REV., Vol. 40, 925, 925-33 and Bork R H, (1971) ‘Neutral Principles and Some First Amendment Problems’. IND. L.J., at I.
[17] Compton J, (2015) ‘What Is Originalism Good For?’, Tulsa Law Review, Vol. 20(2), 427.
[18] McGinnis J and Rappaport B, (2009) ‘Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction’ Northwestern University Law Review, Vol. 103(2), 751–802, 754.
[19] ibid.
[20] ibid.
[21] textualism | Wex | US Law | LII / Legal Information Institute. (n.d.). Law.Cornell.Edu. Retrieved July 22, 2024, from https://www.law.cornell.edu/wex/textualism.
[22] Taylor G H, (1995) ‘Structural Textualism’, B.U. L. REV., Vol. 75, 321, 327.
[23] ibid.
[24] Scalia A, (1997) A Matter of Interpretation.
[25] Blanchard v. Bergeron, 489 U.S. 87 (1989).
[26] Siegel J, (2017) ‘Legal scholarship highlight: Justice Scalia’s textualist legacy’ in SCOTUSblog (Nov. 14) https://www.scotusblog.com/2017/11/legal-scholarship-highlight-justice-scalias-textualist-legacy/.
[27] Alexander L and Prakash S, (2004) ‘“Is That English You’re Speaking?” Some Arguments for the Primacy of Intent in Interpretation’ San Diego Law Review, Vol. 41(3), 967.
[28] Alexander L and Sherwin E, (2021) Advanced Introduction to Legal Reasoning, ch 4.
[29] ibid.
[30] Alexander L and Prakash S, (2004) ‘“Is That English You’re Speaking?” Some Arguments for the Primacy of Intent in Interpretation’ San Diego Law Review, Vol. 41(3), 967.
[31] Robertson M, (2009) ‘The Impossibility of Textualism and the Pervasiveness of Rewriting in Law’ Canadian Journal of Law & Jurisprudence, Vol. 22(2), 381–406, 381.
[32] Amar A R, (1998) Textualism and the Bill of Rights.
[33] Schauer F, (2021) ‘Unoriginal Textualism’, Law & Rhetoric eJournal 1.
[34] Nelson C, (2004) ‘What Is Textualism’ Virginia Law Review, Vol.91, 347–418, 349ff.
[35] Philipse H, (2007) ‘Antonin Scalia’s Textualism in Philosophy, Theology, and Judicial Interpretation of the Constitution’, Utrecht Law Review, Vol. 3, 169–192, 169.
[36] Solum L B, (2019) ‘Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate’ Northwestern University Law Review, Vol. 113(6), 1243–1296, 1268.
[37] ibid, 1244.
[38] Claeys E R, (2002) ‘The Living Commerce Clause: Federalism in Progressive Political Theory and the Commerce Clause After Lopez and Morrison’, Wm. & Mary Bill Rts. J. Vol. 11, 403.
[39] Solum L B, (2019) ‘Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate’ Northwestern University Law Review, Vol. 113(6), 1243–1296, 1271.
[40] ibid, 1272.
[41] ibid, 1272.
[42] ibid, 1272.
[43] ibid, 1272.
[44] ibid, 1272.
[45] ibid, 1272.
[46] ibid, 1273.
[47] See, Thayer J B, (1893) ‘The Origin and Scope of the American Doctrine of Constitutional Law’ Harv. L. Rev., Vol. 7, 129–156, 150.
[48] Sunstein C R, (2023) ‘Experiments of Living Constitutionalism’ Harvard Journal of Law & Public Policy Vol. 46, 1177–1194, 1178.
[49] ibid, 1191.
[50] Strauss D A, (2010) The Living Constitution.
[51] ibid.
[52] Kavanagh A R, (2003) ‘The Idea of a Living Constitution’ Canadian Journal of Law & Jurisprudence, Vol.16, 55–89, 55.
[53] Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
[54] Sunstein C R, (2016) ‘Antonin Scalia, Living Constitutionalist’ Harvard Law Review (forthcoming).
[55] Balkan J M, (2009) ‘Framework Originalism and the Living Constitution’ Northwestern University School of Law, Vol. 103(2), 549–614.
[56] ShareAmerica.Gov, (2016) Democracy in Brief, 1 (https://static.america.gov/uploads/sites/8/2016/07/Democracy-in-Brief_In-Brief-Series_English_Hi-Res.pdf).
[57] Greene A R, (forthcoming) ‘Democratic Legitimacy for Skeptics’.
[58] Sunstein C R, (2023) ‘Experiments of Living Constitutionalism’ Harvard Journal of Law & Public Policy Vol. 46, 1177–1194, 1181.
[59] Brennan, W J, (1986) ‘The Constitution of the United States: Contemporary Ratification’ South Texas Law Review, Vol. 27, 433–446, 437.
[60] Solum L B, (2019) ‘Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate’ Northwestern University Law Review, Vol. 113(6), 1243–1296, 1293.
[61] See, e.g., Whittington K E, (1999) Constitutional Interpretation (Lawrence: University Press of Kansas) 110-159.
[62] Boykin S, (2021) ‘Original-Intent Originalism: A Reformulation and Defense’ Washburn Law Journal, Vol. 60(2), 245-287, 269ff.
[63] ibid, 274.
[64] Siegel R B, (2009) ‘Heller & Originalism's Dead Hand - In Theory and in Practice’ UCLA Law Review, Vol. 56, 1399–1424, 1403.
[65] Calabresi S G, ‘On originalism in Constitutional Interpretation, National Constitution Center https://constitutioncenter.org/the-constitution/white-papers/on-originalism-in-constitutional-interpretation (accessed September 7th 2024).
[66] Tobia K P, Slocum B G, & Nourse V F, (2022) ‘Progressive Textualism’ The Georgetown Law Journal, Vol. 110, 1437–1493, 1437.
[67] McNeill D N, & Tucker E., (forthcoming) ‘The Shape of Citizenship: Extraordinary Common Meaning and Constitutional Legitimacy’, 1.
[68] Linares S, (2008) ‘Sobre El Ejercicio Democrático Del Control Judicial De Las Leyes’ Isomnia, Vol. 28, 149–184, 149.
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