Constitutional Statutes Are “Always Speaking”
Andy YuIn this article, I aim to vindicate the “living tree” approach to constitutional interpretation by proposing that constitutional statutes are “always speaking,” a proposal which I suggest clarifies the approach and explains its proper place in doctrine. After reviewing the “living tree” approach and recent criticism of it, I adopt a unified approach to constitutional and statutory interpretation, and I provide an account of the “always speaking” principle of statutory interpretation. I use the account to suggest that the “always speaking” principle of statutory interpretation manifests itself as the “living tree” approach in constitutional interpretation, and I explain how the “living tree” approach is (and is not) linked to the purposive approach and to “originalism.”