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What Is the Difference Between Originalism and Living Constitutionalism?

Professor Randy Barnett explains how different constitutional law scholars, and judges, can arrive at vastly different interpretations. Those who adhere to “living constitutionalism” decide on a correct result and then use the text and precedent to support their initial assumption. Originalists analyze the text and evidence first, then conclude what result logically follows. https://youtube.com/watch?v=RQZnGt7brZ4


The way constitutional law is typically taught and oftentimes practiced is that a constitutional decision maker will start with the result and then they will look at all the different factors or methods they can appeal to, whether that is text, or history, or practicality, or precedent. And they would say, well, how can I marshall those arguments to reach what I know to be the right result? That's essentially how living constitutionalism worked. It's not completely unconstrained by these factors, but these factors are weighted and measured in order to yield what the interpreter already knows to be the right result. Originalism goes the other way around. Originalism is intended to be a method by which you decide which results are the right results. Not are necessarily the most morally justified results, but which are the results that are actually justified by the Constitution. So you use the methodology to figure out what results are the right ones, rather than you start with the results and then manipulate the methodologies to support the results you've started with. And that's the fundamental different orientation of one versus the other. So first is method, then comes results. So the idea here is to develop a method, original meaning originalism, in which you can identify what is the right result in the particular case in controversy. What originalism hopefully provides is an external standard that other people can use to assess whether someone's analysis has been overly influenced by their own priors, by their own biases, by their own desired outcomes. It is a check against our biases. It doesn't eliminate our biases, but it attempts to check, and if it doesn't check us internally, it can be used by other people to check us externally. That's something that is very difficult for a living constitutionalist approach to provide because built in, baked in to the basic methodology is first we start with the results we like, and then we look at the different methods that will yield that result.

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