Back to Theory--Living Constitutionalism and Eclectic Approachs

This episode discusses living constitutionalism and what we call eclectic approaches to constitutional interpretation such as Phillip Bobbitt’s “modalities” approach. We argue that such approaches have some virtues—including greater descriptive accuracy than originalism and democracy-focused approaches—but significant weaknesses. We also begin to introduce Tushnet’s “craft” account of constitutional interpretation, to be developed in more detail in later episodes.