living Constitution. I might be swayed by this — gotta think on it for a little while. But, it rings true. Maybe Balkin’s living constitution was so attractive to me because it described a working system. But, why is it working. I want my theories to answer that.
If the Constitution is what society says it is (with the admittedly strong limitations of a text from which to work and interpretation by a group that will tend to be very conservative — in the not wanting to change things meaning of the word) — is that a theory? It seems to be a description.
However, I don’t think that a constitution could be anything but what society says it is in a representative society (maybe that’s the attraction of the unwritten constitution!). If that is so, do we need a theory? Isn’t admitting that there is a document that we revere, that has some strict limits, and flexibility that will necessarily result in some sort of slow, conservative shift in meaning toward what we, as a society, think that it should mean, enough? What sort of theory is available here: some really legal realist version, I guess.