Stephen Griffin on the Living Constitution
Michael Ramsey

After a series of posts evaluating the new originalism [ed.: see here], I’m moving on to assess conventional notions of the living Constitution.  Let’s begin with two vignettes.  Consider the comprehensive exchange between Robert Bennett and Lawrence Solum in Constitutional Originalism: A Debate (2011) [ed.: see here].  Solum’s exposition of the new originalism has to be one of the most clear-headed and well-argued defenses of any theoretical position I’ve ever read.  It’s a minor masterpiece that I would recommend to anyone.

 

But note that in response, Bennett does not actually defend living constitutionalism.  That is, Bennett deliberately offers no normative defense of the argumentative tradition known as the “living” Constitution.  From his point of view, living constitutionalism was inevitable at some point given the existence of judicial review and broader developments in American society.  However general this sounds, Bennett is clear enough that the living Constitution (somewhat paradoxically) is a matter of history – something that already has happened in the course of Supreme Court adjudication that (presumably) can’t be altered.  I think this is an important clue about how living constitutionalists tend to think and why sometimes there is a lack of meaningful exchange between the two positions.  And one of my fundamental points in this and the next set of posts is that the idea of the living Constitution should itself be understood historically, through the lens of historicism.