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Consensualism and Philosophic Approach

Consensualism embodies rather than avoids a philosophic approach to constitutional interpretation.
In Poe v. Ullman (1961), Justice Marshall Harlan dissented from the majority opinion interpreting “liberty” – as protected by the Due Process Clause – in terms of a living tradition: tradition should not be considered fixed, but continuously evolving, and this argument became part of the majority opinion in Griswold.
In Lawrence v. Texas (2003), which overruled Bowers v. Hardwick (1986), the right to sexual activity between same-sex persons was recognized. Justice Kennedy wrote that “as the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom”. In other words, the Constitution is an abstract scheme of principles to be elaborated over time, not a concrete code of specific conceptions and enumerated rights.
di Luca Porcella
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