The latest post in Balkin's recent series on Living Constitutionalism is entitled What is Living Constitutionalism, Part II. Here is a taste:
The more fruitful normative question is not what specific interpretive theory judges should adopt to ensure legitimacy, but whether the system of constitutional change the country has developed over time is legitimate. That is, is the system of constitutional decisionmaking legitimate taken as a whole? Does it serve the larger purposes of constitutionalism, democracy, and the rule of law?
"Living constitutionalism" cannot be simply a theory of how individual judges should decide cases– although obviously people can offer that sort of advice as well. It must be an account of why changes in constitutional doctrine over time– which largely occur outside of Article V amendment and are not in the control of any single person, much less any single judge– are legitimate. It has to be an account of why these changes can simultaneously serve rule of law and democratic values.
This post (despite its title) is actually the fourth in a series: Part One Part Two Part Three. If you are interested in contemporary constitutional theory, I strongly recommend that you read the whole series.
