Miguel Schor: Contextualizing the Debate between Originalism and the Living Constitution
Miguel Schor (Drake University Law School) has posted "Foreword: Contextualizing the Debate between Originalism and the Living Constitution" (Drake Law Review, Vol. 59, pp. 961-72 (2011)) on SSRN. Here is the abstract:
One of the most important contemporary constitutional debates is whether the meaning of the Constitution may evolve in light of current circumstances, or whether the Constitution should be interpreted in accordance with how the text was understood by the public that ratified it. The 2011 Drake Constitutional Law Center Symposium addressed this debate by examining Professor David Strauss’s The Living Constitution, which argues the Constitution should be interpreted as a living document using the techniques of the common law. The participants included Keith Whittington, the William Nelson Cromwell Professor of Politics, Princeton University; Rebecca Brown, the Newton Professor of Constitutional Law, University of Southern California; and Will Waluchow, the Senator William McMaster Chair in Constitutional Studies, McMaster University.
This foreword is divided into two parts. Part II briefly contextualizes the debate temporally and spatially. Oddly, scholars have largely ignored the societal and historical context of the debate as well as whether Americans might learn from how constitutional courts abroad deal with analogous interpretive problems. Intellectual debates do not occur in a vacuum, however, but are shaped by wider social and political struggles. Part III summarizes the superb papers presented at the symposium.