Elena Kagan’s testimony during her Supreme Court confirmation hearings, which echoed important parts of Chief Justice John Roberts’s 2005 testimony, officially ended the heated debate over conservative “originalism” versus liberal “living constitutionalism.”

Roberts had rejected an absolutist form of originalism — the idea that judges are bound by the “original meaning” of the Constitution’s words. Rather, he endorsed a form of living constitutionalism: the idea that the Constitution’s broad terms must be interpreted in light of modern circumstances. Kagan, speaking to the Senate Judiciary Committee, echoed Roberts’s point about the Constitution’s broad terms but also declared, “We are all originalists.”

Doug Kendall & James E. Ryan, Do Kagan, Roberts Actually Agree?, Politico (August 4, 2010).