Continuity and Change in Constitutional Historiography
PDF

Keywords

history
historiography
High Court of Australia
Israel Supreme Court
U.S. Supreme Court
interpretation
constitutionalism
originalism
historicism

Abstract

This article builds on growing scholarship in comparative studies of constitutional interpretation. Specifically, this article focuses on the ways in which constitutional judges in different systems approach historical sources, the historiography of constitutional interpretation. A key element of a historiographical approach is the treatment of continuity and change, a theme captured in the idea of the “pastness” of the past. An interpretive review of key cases from American, Israeli, and Australian constitutional courts demonstrates a range of approaches and shows variation both within and among constitutional courts. The article closes with a consideration of some implications of the variations in constitutional historiography.

PDF