The semi-future constitution: entrenching future-oriented constitutional interpretation

Abstract

A recent trend in futures studies has called for strengthening the inclusion of future generations in constitutional law. This is problematic from a practical and a normative viewpoint. This paper introduces a future-oriented theory of democratic constitutionalism that overcomes originalism (which privileges the past) and living constitutionalism (which privileges the present) without resorting to the explicit constitutional protection of the yet unborn. It is divided into five sections. The first challenges the notion that the constitutional entrenchment of the non-overlapping future is the best means of implementing long time horizons in democratic legal systems. The second maintains that constitutions are substantive normative expressions of the ultimate justification of authority. The third demonstrates that the substantive dimension of constitutions is cross-temporal and includes what I call ‘the objective interests in the future’ of all members of the people. The fourth connects such objective interests with rights to political participation. The final section focuses on the cross-temporal role of constitutional adjudication. Because rights to political participation include objective interests in the future and necessarily hold the status of constitutional rights in any legitimate democratic constitution, constitutional adjudication must guarantee their enforcement over government action.