William W. Van Alstyne (William & Mary Law School) has posted Clashing Visions of a 'Living' Constitution on SSRN. Here is the abstract:
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Delivered in the fall of 2010. This article is the edited printed version of the Annual Simon Lecture of the Cato Institute. To be published in the Cato Annual Supreme Court Review of 2011, the article first sets out and briefly reviews several clashing "schools" of constitutional interpretation in the Supreme Court.
So, he notices, differing widely on what it means to speak of a "living" Constitution, various judges and their academic acolytes have pressed quite different theories over a considerable period of time. Ranging from particular enthusiasts of "non-originalism," to Ronald Dworkin' s metaphoric likening of the Supreme Court to "Hercules," to Bruce Ackerman's special notion of "non-textual amendments" (i.e., constitutional changes resulting during special "constitutional moments"), and nearly a dozen theories in all, each "theory" advances its own idea of a "living" constitution. Each also expressly rejects the idea that the amendment processes enumerated in Article V provide the sole means for "updating" the Constitution (and, indeed, each offers itself as authentically complementary to those Article V provisions such as they are).
This article in turn critiques these and several other "theories." It urges judicial fidelity to the Constitution "as is," in keeping with the judges' sole express oath of office as laid in Article VI, reserving constitutional "changes" to the means provided in Article V.
It is the author's contention, moreover, that it is partly due to the "negative synergy" of judicial usurpation of the amendment processes that genuine amendments are far harder to secure today than when James Madison introduced his original list of twelve proposed amendments in 1789, of which ten promptly received sufficient state resolutions of ratifications to become the Bill of Rights of 1791.
Amendments, he asserts, are important; like cambian rings, they are real and physical, recording real change. Judicial "amendments," in contrast, he suggests, are frankly more nearly merely in the likeness of "the emperor's new clothes," i.e., fictive "garments" passed off by clever tailors bent on bamboozling the credulous lining the sidewalks or just standing in the streets. The reader is invited to determine which he or she frankly prefers. The author leaves no doubt of his own preference, such as it is.
