Balkinization
Because of Jack's recent posts on living constitutionalism this might be viewed as a response, but I don’t mean it that way. His posts have been a wonderful and much-needed contribution to our understanding of living constitutionalism. I am recommending them to my students.I have been thinking about how to define a “strong”, “robust” or “hard core” version of living constitutionalism in order to distinguish it in a clear way from opposing views. This is difficult if living constitutionalism is defined in a watered-down way that makes it too easy for most (not all!) to nod heads and agree that the judiciary has adapted the often vague text of the Constitution to changing historical circumstances.
Hard core living constitutionalism means the Constitution and constitutional change should be described, explained, interpreted, and justified in a fully historicized way. Properly understood, living constitutionalism is a full context sport. Let’s take interpretation, since in the DC gun case oral argument we had an outstanding example of undead constitutionalism, the kind that doesn’t live but talks. When interpreting the text or a principle, concept or institution (such as federalism, separation of powers, sovereignty) we first ask whether the context in which that ... more »
