The Collapse of Constitutional Originalism and the Rise of the Notion of the “Living Constitution” in the Course of American State-Building

Abstract

In constitutional studies, the topic of “original intent” is typically treated as a debate within normative constitutional theory about the most appropriate way for interpreters to orient themselves to the text of the Constitution. The central question is whether American constitutionalism, properly understood, obligates interpreters to base decisions on what the framers had in mind when they wrote the Constitution or whether it obligates interpreters to adapt general constitutional principles to changing circumstances or more enlightened sensibilities. Originalism views interpretation as a matter of decoding a set of specific instructions but runs the risk that our institutional arrangements and conceptions of justice will be inappropriately tied to the antiquated experiences and prejudices of generations long gone – what Corwin referred to as “rotting structures” or “discarded” and “unworkable” theories. Non-originalism, or some notion of the “living Constitution,” encourages judges to keep the Constitution relevant for contemporary concerns and purposes but runs the risk that this will lead them to enforce a version of the fundamental law that was never formally authorized by the people.

“Clocks Must Always Be Turned Back”:Brown v. Board of Educationand the Racial Origins of Constitutional Originalism

“…Playing fast and loose with concepts and their application to historical actors who would have illunderstood such labels distorts constitutional development (Skinner 2002). Indeed, as Gillman shows, it did not occur to modern constitutional conservatives to resort to an intent-based "theory"-that is, originalism as an "ism"-until faced with the dominance of Progressive and New Deal divined living constitutionalism (Gillman 1994;1997).…”

“…If not during the Founding era, during the nineteenth century an organizing interpretive principle of legal elites was the nonmalleability of the Constitution (Gienapp 2018;Gillman 1997). 10 Thus, it is no surprise that the first generation of modern constitutional conservatives privileged a fixed rendering of the Constitution during the Progressive era.…”

Marbury v. Madison y los mitos acerca del control judicial de constitucionalidad

“…Tiedeman anticipó ya en 1895 las discusiones que se darían en los Estados Unidos a lo largo del siglo XX y que aún hoy se mantienen vigentes en materia de interpretación constitucional. Para un análisis de las discusiones y cambios que se produjeron en este período es indispensable ver Gillman (1997). 176 Esa idea política condensa lo que se conoce en el mundo anglosajón como Rule of Law.…”

The Adaptability Paradox: Constitutional Resilience and Principles of Good Government in Twenty-First-Century America

“…The American framers sought a durable and comprehensive settlement of the outstanding problems of governance. Working with what they thought were timeless principles of institutional organization, they fashioned a government that they expected would manage all contingencies without sacrificing its essential integrity (Gillman 1997;Hamburger 1989). More to the point, they acted on that faith.…”