In a minimal sense of the word, a constitution consists of a set of norms (rules, principles, or values) that create, structure, and eventually define the limits of the power or authority of government. Understood in this way, all states have constitutions and all states are constitutional states. Everything that is recognizable as a state must have a means of constituting and specifying the limits (or lack thereof) imposed on the three basic forms of government: legislative (enacting new laws), executive (enforcing laws), and judicial (deciding disputes in accordance with laws).  Take the extreme case of an absolute ruler, Rex, who combines unlimited power in all three domains. Let`s generally accept that Rex has these powers, as well as the power to exercise them at will. One could then say that the constitution of this state contains only one rule granting Rex unlimited power. He is not legally responsible for the wisdom or morality of his decrees, nor is he bound by any procedures or other types of restrictions or requirements in the exercise of his powers. Everything Rex orders is constitutionally valid. Originalism comes in various forms (Bork 1990; Scalia, 1997; Whittington, 1999b; Barnett, 2004; Solum, 2008). An originalist might argue that his view necessarily derives from a more general theory of interpretation: interpreting necessarily means finding something that existed at the time of authorship – an original object. Another might readily acknowledge that interpretation could theoretically take the form of an innovative or creative interpretation that evaluates or modifies an original in any way, as might be the case with a groundbreaking interpretation of a play or work of art. Such a theorist might add, however, that such innovative interpretations should never be pursued by constitutional interpreters for reasons of political morality, which have to do, for example, with the principles of democracy, the rule of law and the values of the separation of powers.
The objective of constitutional interpretation should remain, to the extent possible, determined by factors such as initial public understanding or authoritarian intentions. Another originalist might just leave some leeway here by suggesting something like this: while there is a conjecture, perhaps very serious, in favor of interpreting it as a repetition of an original, it is a conjecture that can be overcome in very rare cases. For example, this originalist might say that the presumption in favor of clawback can be rejected if there is a perceptible and profound fundamental shift in public opinion on an important question of political morality implied by an abstract constitutional provision. This was arguably the case in the United States in terms of slavery and equal protection. Presumably, “equal protection” was originally understood both by the authors of the 14th Amendment and by the persons on whose behalf they acted as fully compatible with segregation. This concrete concept of equal protection is, of course, widely condemned today. Its widespread rejection served as the main inspiration for Brown v. Board of Education, whose innovative interpretation of the equality clause may have changed or replaced the original understanding of the term.  Another concession, a concession that seems to be accepted by all originalists, concerns the power and effect of authoritative judicial interpretations of the Constitution. Many originalists believe that Roe v.
Wade was based on a misinterpretation of the U.S. Constitution that went against original conceptions and intentions; But virtually no originalist will go so far as to deny that any contemporary interpretation of the First, Fourth, Fifth, Ninth, and Fourteenth Amendments is justified only if it can be reconciled with this decision. In other words, virtually all originalists agree that established precedents can sometimes prevail over original understanding. Whether this apparent concession is ultimately compatible with the spirit of originalism is perhaps debatable. Such “pusillanimous originalism” (Scalia 1989) can ultimately be reduced to a living form of constitutionalism.  As we shall see in the next section, the role of judicial interpretation of abstract constitutional provisions is at the heart of this dominant form of living constitutionalism that views constitutional interpretation as based on a form of common law argumentation. U.S. constitutionalism has been defined as a set of ideas, attitudes, and patterns of behavior that elaborate the principle that the authority of government comes from the people and is limited by a Basic Law. These ideas, attitudes, and patterns of behavior, according to one analyst, stem from “a dynamic political and historical process rather than a static body of thought established in the eighteenth century.” Throughout U.S.
history, constitutionalism—both descriptive and normative—has traditionally focused on the federal Constitution. Indeed, a common assumption of many scholars has been that the understanding of “American constitutionalism” necessarily includes the thinking that presided over the drafting of the federal Constitution and the American experience with it since its ratification in 1789. There is a rich tradition of state constitutionalism that offers a broader glimpse of constitutionalism in the United States. The United Kingdom is perhaps the best example of constitutionalism in a country that has an uncodified constitution. A multitude of developments in seventeenth-century England, including “the protracted power struggle between the king and parliament was accompanied by a flowering of political ideas in which the concept of checks and balances was clearly defined,” led to a well-developed political regime with several state and private institutions countering state power. Dyzenhaus criticizes Agamben`s “opaque” and “dramatic” notion of extraordinary anomie, suggesting that even in the absence of legal norms, extra-legal morality continues to govern the practices of state authorities. Such a normative and even prescriptive position will inevitably miss the point. See David Dyzenhaus, The Constitution of Law. Legality during a state of emergency 60-62 (2006). These political and constitutional controversies also raised questions of constitutionalism – how to identify the collective sovereign, what powers the sovereign possessed, and how to recognize when that sovereign acted.