Living Constitutionalism and Interpretive Debate in the United States: Changing Interpretations on the U.S. Supreme Court

A “living constitution” is more than poetic metaphor. As a philosophical approach and interpretive methodology, it is a developing theory encompassing normative judgements and active debate over the empirical practices as justices seek to reconcile the original meaning of constitutional text with contemporary circumstances. I review the debate between interpretive and non-interpretive methodologies within the context of American constitutional theory with a focus on the views of U.S. Supreme Court Justices as to the legitimacy of living constitutionalism. The departure of Justices Scalia, a living constitutionalism critic and Kennedy, who embraced emergent rights, and addition Justices Gorsuch and Kavanaugh. proponents of interpretive conservatism, renews the debate over living constitutionalism and its future in American jurisprudence.

Transformative Constitutionalism and the Text of the South African Constitution

South Africa’s Constitutional Court has adopted a purposive approach to interpreting the Constitution of 1996. It first signaled that it would take this direction in the early decision S v Mhlungu, concerning whether criminal cases pending at the time of the adoption of the Interim Constitution were subject to constitutional litigation. That decision became the focal point of scholarly disagreement about whether the purposive approach permitted the court to abandon the plain meaning of the constitutional text. Scholars and judges have increasingly come to support the purposive approach by invoking the idea of transformative constitutionalism i.e. that the Constitutional text itself mandates a break from the legal culture of the past. I evaluate this justification for purposivism and explore the controversy it has generated, particularly with respect to the Constitution’s influence on private law.

Ad Hoc Living Constitution in Japan

I will clarify the figure of the Japanese living constitution. The theory of living constitution in Japan has focused on constitutional change by political branches without formal amendment of Constitution. On the other hand, there have been a few discussions over living constitution by the judiciary. In spite of a few arguments, the Japanese Supreme Court has sometimes determined constitutionality of laws in the light of social change. In fact, the Court has implemented living constitution through responding to social change. However, it is a little different general living constitution because the Court doesn’t change constitutional interpretation. Although the Court adjusts laws to social change in the constitutional case, it doesn’t change constitutional meaning. The Court just held that the law was invalid as it was unreasonable in current situation even if it had been reasonable before. It seems that this is living constitution formed in Japan.

The UK’s inherently living constitution

The UK’s constitution always was ‘living’. We enjoyed no constitutional entrenchment: Parliament could, famously, make or unmake any law, it was bound by no predecessor and could not bind its successors. We lacked judicially enforceable rights in any sense: even breaches of supranational human rights protections could not trump Parliament. The constitution was thus living in the sense that each government could bend the constitution to its will. Change began with the UK’s accession to the EU in the 1970s. This required courts to disapply Acts of Parliament. Thus started a cavalcade of constitutional amendment – power was devolved downwards to the nations, while being limited through judicial enforcement of fundamental rights. The new state of affairs crystallised in the 2015 HS2 case. It was recognised we have a deeper level of entrenched constitutional statutes. It is only now our judges begin to grapple with ‘constitutional’ interpretation. We have much to learn from foreign friends.

Canada and the Living Tree

Living tree constitutionalism is firmly established in Canadian constitutional interpretation, notably since the arrival of the Charter of Rights and Freedoms. Some recent Canadian writing questions the early authority for the living tree (Edwards v AG Canada (1929)), arguing that the doctrine was essentially re-invented to support progressive Charter interpretation, and instead supports originalist constitutional interpretation along American lines. This paper re-examines the record and concludes that Canadian courts from the 1930s onwards understood the living tree doctrine and applied it, in particular to the changing context of Canada’s progress from colony to independent nation. This paper also attempts to put living tree constitutionalism in a broader theoretical frame, arguing that it is in conformity with other constitutional principles, such as democracy and the rule of law.