The Special Kay Defence of Non-Originalist Judges: A Serial with an Unhealthy Final Ingredient

In this Article, the author considers Richard Kay’s views on constitutional interpretation, the rule of recognition and how best to conceptualise top courts in the common law world—courts that appear not to be engaged in constitutionalism, or giving the legal text the meaning its legitimate authors intended. The author notes that his views and Kay’s line up almost perfectly across these topics but, in keeping with these commemorative special issues, he manages to pick a couple of small fights with Kay’s views—one small quibble, a defence, and then a bigger quibble.