At Legal Theory Blog, Larry Solum has an updated entry in his Legal Theory Lexicon: Living Constitutionalism. From the introduction:
Constitutional discourse in both the academy and the public sphere has recently included quite a bit of talk about "originalism." But what about originalism's great historic rival, "living constitutionalism?" What is living constitutionalism and how is it different from originalism? A preliminary answer to that question can be offered in the form of a simple definition:
Living Constitutionalism: Living constitutionalism is the view that the legal content of constitutional doctrine does and should change in response to changing circumstances and values.
This entry in the Legal Theory Lexicon will examine the history of living constitutionalism, discuss the question as to how and whether it differs from originalism, and briefly explore some of the main forms of contemporary academic living constitutionalism.
On "Living Constitutionalism versus Originalism":
Like other theoretical terms, "living constitutionalism" and "originalism" have meanings that are disputed. This means that some theorists are likely to offer definitions for these terms that make it true (as a matter of definition) that living constitutionalism and originalism are mutually exclusive, where as other theorists may embrace the possibility that some moderate forms of living constitutionalism are compatible with originalism. The most prominent example of compatibilism is Jack Balkin's theory, which he explicated and defended in his book, Living Originalism.
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…"[L]iving originalism" is a conceptual possibility if it is the case that the fixed original meaning of the constitutional text underdetermines at least some questions of constitutional doctrine. Such underdetermination may occur if the constitution contains provisions that are vague or open textured. Such provisions could be said to create "construction zones," areas of doctrine where the linguistic meaning of the text would need to be supplemented by precisification or default rules. Thus, if some living constitutionalists accept that the constitutional text is binding when it is clear, then they could embrace originalism as to some issues while affirming that constitutional doctrine should evolve with respect to others.
Many participants in debates about living constitutionalism and originalism seem to reject the idea of compatibilism. One reason for such rejection may a dispute over the definitions of the terms "living constitutionalism" and "originalism" could be defined as mutually exclusive positions. This way of carving up the conceptual space has the advantage that it puts the two views in opposition to each other. To the extent that the definitions are contested, the result would be "metalinguistic negotiation," which is discussed in another Legal Theory Lexicon entry.
And, most helpfully:
Given the highly abstract definition of "living constitutionalism," is should not be surprising that there are many different versions. Living constitutionalism is best viewed as a family of theories. A full survey of the members of the family is too much for a Lexicon entry, but here are some of the most important members …
Posted at 6:22 AM