Constitutional Interpretation and a Theory of Evolutionary Originalism

A Constitution cannot be applied without employing some theory of interpretation. An adequate theory—that is, a coherent method or approach—must address two fundamental, connected questions. In what sense are words in the text to be understood? How is ambiguity or uncertainty to be resolved? Resolution of these matters is logically prior to the determination of particular controversies. Of necessity, judges have provided some answers to these foundational questions. But the issues have only begun to attract significant express attention in recent times, particularly in light of developments relating to implied rights. This new-found concern is not surprising, for the further one moves from considering clear and direct stipulations of particular text, the more important one's interpretational approach becomes. The theory of constitutional interpretation employed affects both one's readiness to recognise implications, and the nature and age of the sources to which reference is made in so doing.