Education Moulds

James Allan (The University of Queensland - T.C. Beirne School of Law) has posted
The Curious Concept of the ‘Living Tree’ (Or Non-Locked-In) Constitution on SSRN.  Here is the abstract:

In
this working paper the author defends originalism as the least-bad
approach to interpreting constitutions of the sort the United States
and Canada have. He does this by starting with a parliamentary
sovereignty system, such as that of the United Kingdom or New Zealand
where the elected legislature is legally unlimited in what it can do.
He finishes with an American or Canadian-style written constitution
with an entrenched bill of rights. To make this journey, the author
argues, a set of assumptions need to be made in order to have any
prospect of convincing sufficient numbers of citizens to support the
move. Those assumptions all point towards some version of originalism
as the best, or least bad, approach to interpreting this new written
constitution. In fact were other approaches to interpreting it - those
such as ‘living constitutionalism’ or Dworkinian best-fit interpreting
- made explicit at the time as the approach that would later be used,
the author argues that proponents of the new constitution could never
garner sufficient support to have it adopted. Orginalism is thus tied
to democratic legitimacy and preferable for that reason.

Source: Lawrence Solum