One important methodological issue involves the question of how to interpret common law rights that are made part of the Constitution. Common law rights had different features than constitutional rights. In particular, to what extent does a common law right, which in at least certain ways was subject to change or adjustment, become frozen when it was made part of the Constitution? The issue is an important one because so many of constitutional rights, especially those in the Bill of Rights, were initially common law rights.
There are at least three possible positions one might have about this issue:
1. Static: When the common law right is constitutionalized, it becomes fully frozen, as if it were written law. To determine the meaning of the right, one looks to the common law in 1789. The existing decisions regarding the common law constitute the full meaning of the right.
2. Dynamic: Although the common law right was written into the Constitution, it did not change its character. Instead, it remains as flexible as a common law right. Under this interpretation, one might see something like the living constitution view in the Constitution.
3. Intermediate: When the common law right was constitutionalized, it changed its character, but it did not become fully frozen as if it were written law. Under this view, one treats the right as a common law right as of the time it was enacted, but does not give it a dynamic effect with changing circumstances.
While I have not fully made up my mind, these days I lean towards the intermediate position. Let me try to explain why. There is a lot to say about this, but I will try focus on some of the essentials.