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Part I below explores the interpretive approaches of three other high national courts that have engaged in constitutional review over a long period of time, identifying two respects in which they may bear on this debate. First, their jurisprudence relies on interpretive approaches that depend on multiple sources and forms of argument-what some call an "eclectic" method, and others might call common law constitutionalism. Second, the jurisprudence of other significant national courts acknowledges the possibility that interpretive understandings will change. Indeed, in those countries with continuity of rights-protecting constitutional regimes and with high courts vested with the power of judicial review, it is a hallmark that constitutions be construed in a certain sense as "living," with prior interpretations open to modification in light of new developments and changed understandings. This may be a consequence of the debilitation of rationales for intentionalism beyond original generations, and of changes in legal consciousness that undermine the plausibility of more formalist methods. The ubiquity of interpretive change and of multi-sourced methods of interpretation raises questions about claims that democratic legitimacy or appropriate levels of judicial restraint depend on formalist, intentionalist modes of interpretation and exclusive reliance on constitutional amendment for change. Part II explores the metaphors through which we think about the "living" and "original" Constitution. The U.S. metaphor - a "living constitution"- does not necessarily capture the actual methodologies of our own constitutional interpretation, which remain grounded in constitutional text and whose sources include original understandings as well as later history and precedent. In Canada, a widely used metaphor is of their constitution as a "living tree." The idea of a "living tree" may better embrace the multiple modalities - text, original intentions, structure and purpose, precedent and doctrine, values and ethos, prudential or consequentialist concerns - of contemporary constitutional interpretation. It suggests that constitutional interpretation is constrained by the past, but not entirely. Unlike the less tethered "living constitution," it captures the idea of constraint, the role of text and original understanding in the roots of the constitutional tree and the role of precedent and new developments in its growth. Yet all metaphors mislead; they can obscure as much as they illuminate; and the tree metaphor understates the effects of major constitutional change and the role of human agency in that process. Nonetheless, moving the metaphor to the Constitution as a "living tree" may emphasize commonalities in interpretive approaches and thus support the idea of legitimate constitutional disagreement as an ordinary part of adjudication, not a symptom of "lawless" judges engaged in “naked political judgment”.

Publication Citation

75 Fordham L. Rev. 921-960 (2006)