Constitutional Interpretation

Robert W. Bennett*

*Corresponding author for this work

Research output: Chapter in Book/Report/Conference proceedingChapter

1 Scopus citations

Abstract

Contemporary debates about constitutional interpretation in the United States seem fixated on what is called 'originalism', the view that, regardless of when some constitutional issue arises, guidance for resolving it is to be sought in 'original' sources, those which accompanied the promulgation of the constitutional language in question. The apparent alternative is 'living constitutionalism', in which a large dose of judicial discretion keeps constitutional interpretation in touch with a changing world. This is seen by originalists as relegating ill-defined responsibility to the doubtful authority of the judiciary. Originalists invoke the writtenness of the Constitution, the desirability of stability in the law, specific constitutional provision for amendments as signaling the acceptable mechanism for change, and the tenuous democratic credentials of life-tenured federal judges to depict originalism as the right approach to constitutional interpretation, and living constitutionalism as misbegotten. This article provides an overview of originalism and living constitutionalism. It first discusses constitutional language and original intention before focusing on the summing problem, degrees of generality of language, degrees of generality of intentions, unforeseen problems, and constitutional amendments.

Original languageEnglish (US)
Title of host publicationThe Oxford Handbook of Language and Law
PublisherOxford University Press
ISBN (Electronic)9780191750694
ISBN (Print)9780199572120
DOIs
StatePublished - Nov 21 2012

Keywords

  • Constitutional amendments
  • Constitutional interpretation
  • Constitutional language
  • Law
  • Living constitutionalism
  • Original intention
  • Originalism
  • Summing problem
  • United States

ASJC Scopus subject areas

  • Arts and Humanities(all)
  • Social Sciences(all)

Fingerprint Dive into the research topics of 'Constitutional Interpretation'. Together they form a unique fingerprint.

  • Cite this

    Bennett, R. W. (2012). Constitutional Interpretation. In The Oxford Handbook of Language and Law Oxford University Press. https://doi.org/10.1093/oxfordhb/9780199572120.013.0009