Common Law Constitutionalism and the Written Constitution

This paper is a contribution to the development of a common-law approach to constitutional interpretation. It provides an answer to the objection that drawing on common-law principles in the interpretation of a constitutional text makes the meaning of its normative terms dependent on the subjective moral views of judges. To this end, it uses David Strauss’ notion that any interpretation of constitutional law should be compatible with the current meaning of the words of which a constitutional text is composed. It argues that the current meaning of words referring to a constitutional text’s normative concepts is tied to the current moral and political commitments of the community. As a result, judges who employ the common-law approach to constitutional interpretation are able to ensure that their decisions are in harmony with developments in the community’s own moral and political commitments.