At Liberty Law Blog, John McGinnis: Constitutional Interpretation in Republican and Mixed Regimes. From the introduction:
In republican constitutionalism, the people make a firm precommitment to a particular form of governance. Thus, they pass a constitution whose provisions prohibit certain actions in later periods. This process of self-constraint can be seen in republican terms as an exercise in popular sovereignty. In addition, if the constitution is originally enacted under a good process, such as one having relatively stringent supermajority rules, it is likely to improve the welfare of the people over the course of the nation’s history. The distinctive interpretative method of republican constitutionalism is originalism: the meaning chosen by the people when the constitution is passed binds the people at later times.
In contrast, living constitutionalism is the distinctive interpretive method of the constitution of a mixed regime, which includes an aristocratic element. Support for a mixed regime can be traced to Aristotle, and, in modern constitutionalism, the aristocratic element is supplied by the judiciary, whose current judgments constrain the people.
Posted at 6:36 AM