Constitutional Interpretation: Non-originalism

Mitchell N. Berman, University of Pennsylvania Law School

6 Philos. Compass 408 (2011)


Debates over the proper theory of, or approach to, constitutional interpretation rage through many Western constitutional democracies. Although the number of distinct theories, if finely individuated, might match the number of theorists who have entered the fray, it has become customary to group the competing accounts into two broad camps, commonly labeled ‘originalism’ and ‘non-originalism’. This article presents an overview of non-originalist approaches to constitutional interpretation. However, because non-originalism is defined as the negation of originalism – that is, diverse theories are grouped together as ‘non-originalist,’ not so much by what they commonly affirm, as by what they commonly deny – the project naturally focuses as well on originalist theories of interpretation. After specifying what originalism maintains, and what objections it encounters, the essay sketches some of the more prominent non-originalist approaches to constitutional interpretation and identifies some of the criticisms they face and worries they provoke. Preliminarily, it explains why ‘theories of constitutional interpretation’ constitute only a subset of ‘theories of judicial review.’