Aileen Kavanagh (Trinity College (Dublin)) has posted The Living Constitution in Collaborative Context on SSRN. Here is the abstract:
In this paper, I argue that living constitutionalism (i.e. a dynamic form of constitutional interpretation where courts develop, update, and change constitutional meaning over time) is both constitutionally legitimate and normatively desirable. In doing so, however, I emphasise that the legitimacy of living constitutionalism depends crucially on the limits of dynamic judicial interpretation. While constitutional adjudication necessarily entails a degree of judicial creativity, it must be a form of constrained creativity and incremental innovation. In documenting where the limits of dynamic judicial interpretation lie, I situate the living constitution in collaborative context i.e. in the context of a dynamic division of labour between the branches of government, where courts have a significant but circumscribed role to play. Cutting across the binaries of judicial activism and restraint, I recommend a form of ‘calibrated constitutional review’ as part of a shared project of implementation, which I illustrate using comparative examples on same-sex marriage, assisted dying, and recognition of trans-rights. Finally, I highlight the role of social movements and civil society as part of a multi-institutional constitutional scheme, where a plurality of constitutional actors contribute to the collaborative constitutional enterprise of protecting and promoting rights over time.
Highly recommended.