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The Living Constitution
Supreme Court Justice Antonin Scalia once remarked that the theory of an evolving, "living" Constitution effectively "rendered the Constitution useless." He wanted a "dead Constitution," he joked, arguing it must be interpreted as the framers originally understood it.
In The Living Constitution , leading constitutional scholar David Strauss forcefully argues against the claims of Scalia, Clarence Thomas, Robert Bork, and other "originalists," explaining in clear, jargon-free English how the Constitution can sensibly evolve, without falling into the anything-goes flexibility caricatured by opponents. The living Constitution is not an out-of-touch liberal theory, Strauss further shows, but a mainstream tradition of American jurisprudence--a common-law approach to the Constitution, rooted in the written document but also based on precedent. Each generation has contributed precedents that guide and confine judicial rulings, yet allow us to meet the demands of today, not force us to follow the commands of the long-dead Founders. Strauss explores how judicial decisions adapted the Constitution's text (and contradicted original intent) to produce some of our most profound accomplishments: the end of racial segregation, the expansion of women's rights, and
the freedom of speech. By contrast, originalism suffers from fatal flaws: the impossibility of truly divining original intent, the difficulty of adapting eighteenth-century understandings to the modern world, and the pointlessness of chaining ourselves to decisions made centuries ago.
David Strauss is one of our leading authorities on Constitutional law--one with practical knowledge as well, having served as Assistant Solicitor General of the United States and argued eighteen cases before the United States Supreme Court. Now he offers a profound new understanding of how the Constitution can remain vital to life in the twenty-first century.
In The Living Constitution , leading constitutional scholar David Strauss forcefully argues against the claims of Scalia, Clarence Thomas, Robert Bork, and other "originalists," explaining in clear, jargon-free English how the Constitution can sensibly evolve, without falling into the anything-goes flexibility caricatured by opponents. The living Constitution is not an out-of-touch liberal theory, Strauss further shows, but a mainstream tradition of American jurisprudence--a common-law approach to the Constitution, rooted in the written document but also based on precedent. Each generation has contributed precedents that guide and confine judicial rulings, yet allow us to meet the demands of today, not force us to follow the commands of the long-dead Founders. Strauss explores how judicial decisions adapted the Constitution's text (and contradicted original intent) to produce some of our most profound accomplishments: the end of racial segregation, the expansion of women's rights, and
the freedom of speech. By contrast, originalism suffers from fatal flaws: the impossibility of truly divining original intent, the difficulty of adapting eighteenth-century understandings to the modern world, and the pointlessness of chaining ourselves to decisions made centuries ago.
David Strauss is one of our leading authorities on Constitutional law--one with practical knowledge as well, having served as Assistant Solicitor General of the United States and argued eighteen cases before the United States Supreme Court. Now he offers a profound new understanding of how the Constitution can remain vital to life in the twenty-first century.
176 pages, Hardcover
First published April 12, 2010
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210 people want to read
About the author
David A. Strauss
31 books10 followersDavid A. Strauss is the Gerald Ratner Distinguished Service Professor of Law at The University of Chicago Law School.
David Strauss graduated from Harvard College summa cum laude in 1973. He then spent two years at Magdalen College, Oxford, on Marshall Scholarship and received a B.Phil. in politics from Oxford in 1975. In 1978, he graduated magna cum laude from Harvard Law School, where he was Developments Editor of the Law Review. Before joining the faculty, he worked as an Attorney-Adviser in the Office of Legal Counsel of the U.S. Department of Justice and as an Assistant to the Solicitor General of the United States.
Mr. Strauss joined the faculty in 1985. In 1990, he served as special counsel to the Senate Judiciary Committee. Mr. Strauss has argued eighteen cases before the United States Supreme Court. He has served Chair of the Board of Trustees of the University of Chicago Laboratory Schools and as a member of the Board of Governors of the Chicago Council of Lawyers. Mr. Strauss is, with Geoffrey Stone and Dennis Hutchinson, editor of the Supreme Court Review. He has published articles on a variety of subjects, principally in constitutional law and related areas. He is a Fellow of the American Academy of Arts and Sciences. In addition to his current teaching interests—Constitutional Law, Federal Jurisdiction, and Elements of the Law—he has taught Civil Procedure, Torts, and Administrative Law.
David Strauss graduated from Harvard College summa cum laude in 1973. He then spent two years at Magdalen College, Oxford, on Marshall Scholarship and received a B.Phil. in politics from Oxford in 1975. In 1978, he graduated magna cum laude from Harvard Law School, where he was Developments Editor of the Law Review. Before joining the faculty, he worked as an Attorney-Adviser in the Office of Legal Counsel of the U.S. Department of Justice and as an Assistant to the Solicitor General of the United States.
Mr. Strauss joined the faculty in 1985. In 1990, he served as special counsel to the Senate Judiciary Committee. Mr. Strauss has argued eighteen cases before the United States Supreme Court. He has served Chair of the Board of Trustees of the University of Chicago Laboratory Schools and as a member of the Board of Governors of the Chicago Council of Lawyers. Mr. Strauss is, with Geoffrey Stone and Dennis Hutchinson, editor of the Supreme Court Review. He has published articles on a variety of subjects, principally in constitutional law and related areas. He is a Fellow of the American Academy of Arts and Sciences. In addition to his current teaching interests—Constitutional Law, Federal Jurisdiction, and Elements of the Law—he has taught Civil Procedure, Torts, and Administrative Law.
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Displaying 1 - 19 of 19 reviews
May 16, 2014
This is an outstanding book, in my opinion. It lucidly and lightly makes a compelling case for a positive conception of what is called the living constitution. This conception is that the constitution is really a common law tradition. The written constitution has some role to play in the (common law) constitution but much less than is sometimes suggested, and in somewhat different ways.
One very important thing I learned from this book is that Originalism, which is now seen as a conservative approach to the constitution, is actually quite independent of it; and fifty or so years ago the leading Originalists, such as Hugo Black, were liberals. It seems (and here I go beyond what Strauss says explicitly though not beyond what he implies) that Originalism is a legal philosophy for those who see themselves as insurgents (whether they actually are or not). It is essentially a radical view, a return to origins to overthrow what is seen as the current, harmful status quo. The common law, however, is the tool of the conservative in the Burkean sense. It involves humility, reasonable deference to existing institutions and practices on the grounds of their having endured and therefore served reasonably well. It is because they right wing in the USA now see themselves as a beleaguered minority that they turn to Originalism. (Of course, they are not nearly as much of a beleaguered minority as they think, but that is their mind set.) And in fact, it is quite obvious that the right wing today, in many contexts, are anything but conservative in the Burkean sense. They seek radical change, such as the abolition of social security, the dissolution of large parts of the federal administration (such as the NEA, the Department of Education, and so on), the abolition of progressive income tax, all of which the Democrats, in true Burkean style, seek to protect and conserve.
The Originalist objection to a living constitution is that it means that judges can do whatever they want, unconstrained by the (written) constitution. But by taking the constitution as a common law tradition, Strauss shows that judges are constrained in exactly the ways they are always constrained in common law, by precedent tempered with an eye to fairness and good policy (in other words, that Burkean approach again).
In fact, Supreme Court decisions that are now accepted as constitutional high points (such as Brown vs Board of Education) spend almost no time over interpreting the words of the written constitution. They refer to previous decisions and in many cases simply serve to make explicit the tendencies of these earlier decisions.
Where the written constitution is valuable, Strauss argues, is in providing a common ground. For this purpose, what matters is what people generally take it to mean today, not what people two hundred years ago took it to mean.
Another reviewer comments that Strauss does not extend enough charity in his account of Originalism. That might be so, since as the position is presented here, it appears nothing less than insane. I would have welcomed deeper exploration of different varieties of Originalism. But I doubt that any variety would withstand the many cogent arguments against the view that Strauss provides.
One very important thing I learned from this book is that Originalism, which is now seen as a conservative approach to the constitution, is actually quite independent of it; and fifty or so years ago the leading Originalists, such as Hugo Black, were liberals. It seems (and here I go beyond what Strauss says explicitly though not beyond what he implies) that Originalism is a legal philosophy for those who see themselves as insurgents (whether they actually are or not). It is essentially a radical view, a return to origins to overthrow what is seen as the current, harmful status quo. The common law, however, is the tool of the conservative in the Burkean sense. It involves humility, reasonable deference to existing institutions and practices on the grounds of their having endured and therefore served reasonably well. It is because they right wing in the USA now see themselves as a beleaguered minority that they turn to Originalism. (Of course, they are not nearly as much of a beleaguered minority as they think, but that is their mind set.) And in fact, it is quite obvious that the right wing today, in many contexts, are anything but conservative in the Burkean sense. They seek radical change, such as the abolition of social security, the dissolution of large parts of the federal administration (such as the NEA, the Department of Education, and so on), the abolition of progressive income tax, all of which the Democrats, in true Burkean style, seek to protect and conserve.
The Originalist objection to a living constitution is that it means that judges can do whatever they want, unconstrained by the (written) constitution. But by taking the constitution as a common law tradition, Strauss shows that judges are constrained in exactly the ways they are always constrained in common law, by precedent tempered with an eye to fairness and good policy (in other words, that Burkean approach again).
In fact, Supreme Court decisions that are now accepted as constitutional high points (such as Brown vs Board of Education) spend almost no time over interpreting the words of the written constitution. They refer to previous decisions and in many cases simply serve to make explicit the tendencies of these earlier decisions.
Where the written constitution is valuable, Strauss argues, is in providing a common ground. For this purpose, what matters is what people generally take it to mean today, not what people two hundred years ago took it to mean.
Another reviewer comments that Strauss does not extend enough charity in his account of Originalism. That might be so, since as the position is presented here, it appears nothing less than insane. I would have welcomed deeper exploration of different varieties of Originalism. But I doubt that any variety would withstand the many cogent arguments against the view that Strauss provides.
May 23, 2010
Specious logic peppered with sophisms. We need a "living constitution" because amending the written one we have is just too darn tough. So judges must step in where legislators fear to tread. He also takes one quote by Jefferson (who didn't attend the constitutional convention) and beats it like a rented mule.
I will post a link to a full review later, but if this reasoning is what passes muster at the once great University of Chicago, that's pretty sad.
I will post a link to a full review later, but if this reasoning is what passes muster at the once great University of Chicago, that's pretty sad.
December 19, 2021
a pointed critique of originalism and introduction to the idea that the constitution is more like the common law than a rigid document to be read in one way indefinitely. overall it was good, just kind of repetitive at times
November 6, 2022
This is the best of several books I have read to date on constitutional interpretation. Although I don't have time right now to write a full review, I strongly recommend this book. The following excerpts will have to suffice in lieu of a formal review:
"It takes a certain kind of genius to construct a document that uses language specific enough to resolve some potential controversies entirely and to narrow the range of disagreement on others—but that also uses language general enough not to force on a society outcomes that are so unacceptable that they discredit the document. The genius of the U.S. Constitution is precisely that it is specific where specificity is valuable and general where generality is valuable—and it does not put us in unacceptable situations that we can’t plausibly interpret our way out of. There is reason to think that the framers were self-conscious about this. The framers were extremely careful, for example, in the way they wrote about slavery in the Constitution—for one thing, they never used the word. The framers of the Equal Protection Clause of the Fourteenth Amendment did not want to ban school segregation, but they didn’t say that in the text of the amendment; there is no added clause saying something like 'provided, however, that the separation of the races may be maintained,' even though that was apparently what they thought. If they had included such a clause, it would have been much more difficult for the Supreme Court to decide Brown [v. Board of Education] when it did, and the civil rights revolution might have been forestalled, with damaging results." (p. 112)
"This is why originalism is, despite its pretensions, inconsistent with the true genius of the Constitution. At least this is so if originalism is taken to require that the understandings of those who adopted a provision continue to govern until the provision is formally amended. The drafters and ratifiers of the First Amendment may well have thought that blasphemy could be prohibited; the drafters and ratifiers of the Fourteenth Amendment thought that sex discrimination was acceptable. Had the amendments said those things, in terms that could not be escaped by subsequent interpreters, our Constitution would work less well today. But the text does not express those specific judgments. As a result, instead of having to read the First and Fourteenth Amendments out of the Constitution, we are able to read our own content into them—following a common law approach—and then use them to enhance the prestige of the Constitution as a whole. That, in turn, more thoroughly entrenches the specific provisions of the Constitution that serve as common ground.
"What originalism does is take general provisions and make them specific. Indeed, that is the point of originalism: to confine judges to specific outcomes rather than leaving them free to interpret the general provisions. Originalists, implicitly or explicitly, claim to be keeping faith with the authors of the Constitution; many originalists make a point of expressing their reverence for the framers. But if they really appreciated the framers, they would realize that a great part of the framers’ genius lay exactly in their ability to leave provisions general when they should be left general, so as not to undermine the document’s ability to serve as common ground. Making the general provisions specific, as originalists would, undoes the framers’ ingenious project." (pp. 113-14)
Alan E. Johnson
January 7, 2018
"It takes a certain kind of genius to construct a document that uses language specific enough to resolve some potential controversies entirely and to narrow the range of disagreement on others—but that also uses language general enough not to force on a society outcomes that are so unacceptable that they discredit the document. The genius of the U.S. Constitution is precisely that it is specific where specificity is valuable and general where generality is valuable—and it does not put us in unacceptable situations that we can’t plausibly interpret our way out of. There is reason to think that the framers were self-conscious about this. The framers were extremely careful, for example, in the way they wrote about slavery in the Constitution—for one thing, they never used the word. The framers of the Equal Protection Clause of the Fourteenth Amendment did not want to ban school segregation, but they didn’t say that in the text of the amendment; there is no added clause saying something like 'provided, however, that the separation of the races may be maintained,' even though that was apparently what they thought. If they had included such a clause, it would have been much more difficult for the Supreme Court to decide Brown [v. Board of Education] when it did, and the civil rights revolution might have been forestalled, with damaging results." (p. 112)
"This is why originalism is, despite its pretensions, inconsistent with the true genius of the Constitution. At least this is so if originalism is taken to require that the understandings of those who adopted a provision continue to govern until the provision is formally amended. The drafters and ratifiers of the First Amendment may well have thought that blasphemy could be prohibited; the drafters and ratifiers of the Fourteenth Amendment thought that sex discrimination was acceptable. Had the amendments said those things, in terms that could not be escaped by subsequent interpreters, our Constitution would work less well today. But the text does not express those specific judgments. As a result, instead of having to read the First and Fourteenth Amendments out of the Constitution, we are able to read our own content into them—following a common law approach—and then use them to enhance the prestige of the Constitution as a whole. That, in turn, more thoroughly entrenches the specific provisions of the Constitution that serve as common ground.
"What originalism does is take general provisions and make them specific. Indeed, that is the point of originalism: to confine judges to specific outcomes rather than leaving them free to interpret the general provisions. Originalists, implicitly or explicitly, claim to be keeping faith with the authors of the Constitution; many originalists make a point of expressing their reverence for the framers. But if they really appreciated the framers, they would realize that a great part of the framers’ genius lay exactly in their ability to leave provisions general when they should be left general, so as not to undermine the document’s ability to serve as common ground. Making the general provisions specific, as originalists would, undoes the framers’ ingenious project." (pp. 113-14)
Alan E. Johnson
January 7, 2018
April 30, 2010
A book about Constitutional interpretation for the interested nonlawyer, arguing for evolving interpretations rather than rooted originalism. Slight, breezy, chatty, with that rare capacity to compress complexities to non-technical language. Which all sounds like a recommendation – and is -- except that going to law school is kind of like accidentally wandering into one of those machines that turns people into Cybermen from Doctor Who: it sticks probes in through your every orifice, replaces half your brain with new circuitry, and rewires the rest to a new sensory pallet of evil that the normal-brained can’t access. Whoa, simile police!
What I mean is that I can’t read popular law books anymore, because they just don’t work on me. I spent this entire book constructing a series of more or less legalistic criticisms, and wasn’t really able to appreciate what it was doing in its own circumscribed domain. Strauss is a brilliant lawyer (and a really great guy, by the way) but he managed not to sound like one for this entire book, which is pretty remarkable, actually.
A few of my criticisms, incidentally, in brief: I disagreed with the substance of the historical counterfactual about the passage of the Equal Rights Amendment resulting in the same framework for evaluating gender discrimination that we have extra-constitutionally now (I think this is just flat wrong), I find the characterizations of Dennis undercut the message about common law constitutional jurisprudence, I thought the book set up some straw man arguments by failing to distinguish absurd original text Originalism and, say, original public meaning Originalism, etc. et lawyer cetera.
What I mean is that I can’t read popular law books anymore, because they just don’t work on me. I spent this entire book constructing a series of more or less legalistic criticisms, and wasn’t really able to appreciate what it was doing in its own circumscribed domain. Strauss is a brilliant lawyer (and a really great guy, by the way) but he managed not to sound like one for this entire book, which is pretty remarkable, actually.
A few of my criticisms, incidentally, in brief: I disagreed with the substance of the historical counterfactual about the passage of the Equal Rights Amendment resulting in the same framework for evaluating gender discrimination that we have extra-constitutionally now (I think this is just flat wrong), I find the characterizations of Dennis undercut the message about common law constitutional jurisprudence, I thought the book set up some straw man arguments by failing to distinguish absurd original text Originalism and, say, original public meaning Originalism, etc. et lawyer cetera.
March 5, 2018
An excellent guide to a common law conception of constitutional interpretation, written for non-lawyers as well as lawyers. Even those who do not agree with the thesis or argumentation can be benefit from this succinct and well argued positive statement of a living constitution.
The book proceeds in a few parts, first the book lays out three major criticisms of originalism, which it sets up as a contra-theory, then moves to a brief theory of the common law constitution, giving two examples of the common law constitution's success. The book then concludes on the interaction of the written and common law constitution, which personally I thought was the most novel and interesting part of the book.
Straus's critiques of originalism starts by laying out the various desirable concepts that would not exist under an originalist interpretation, before arguing that originalism makes lawyers amatuer historians (in answering difficult specific questions that may not have good historical answers), that judges cannot translate/apply well historical concepts to modern day issues, and that the theory lacks a moral justification for why the founding should bind the present. Straus argues that moderate originalism or living originalism ducks the difficult un-desirable consequences of originalism by appealing a higher generality of original meaning, but argues rightfully that this erodes the determinacy that is the one of the major advantages that originalism purports to offer compared to other constitutional interpretations.
Straus then moves to explain his positive theory of the common law constitution which he claims is both a descriptive (this is probably true, read any SCOTUS case and it will refer to case law more than the text in most instances) and desirable explanation for constitutional interpretation. Straus cites Burke as justification for a common law system, that is epistemological modesty about having all the right answers, and a reliance on experience rather than abstract logic. One of the arguments Straus makes that I think is incomplete is his response to the originalist critique that non-originalist interpretations are undemocratic because it allows judges to slip their policy preferences into the law. Straus argues that this phenomenon does not occur because the interpretation is non-originalist, but because of judicial supremacy. While, the argument has some merit, it ducks the issue that given a world where judicial supremacy is accepted, what method binds judges? If originalism is determinate, it would bind judges more than less determinate theories. Straus then gives two major examples of common law successes. The first is the freedom of expression, which both shows some of the weaknesses of originalism and the strength of common law. The current historical consensus is that the first amendment was only understood originally to prohibit prior restraint, and not prohibit punishment post-publiciation. However, the Supreme Court's first amendment doctrine evolved out of experience to protect the full expression that we enjoy today. Straus traces the doctrinal development of the current doctrinal tests as evolving over experience, not driven by the bare text or the original understanding of the first amendment. The second example Straus cites as a success of the common law is Brown v. Board of Education. This example showed in more detail common law evolution. Straus argues that the case law before Brown laid the foundation for the holding that separate is never equal. Earlier case law established that states could not rely on demand side arguments to not provide equal accommodations (McCabe), and that equal accommodations required more than tangible equality, that states could not symbolically discriminate (Gaines). While these earlier cases not repudiate separate but equal, they were moving towards a direction that would be made explicit in Brown.
While the theory that Straus lays out has its appeals, I wonder if his method of proof of cherry picking successes really shows the desirability of the common law approach to the constitution. After all, Plessy and the Civil Rights Cases of 1883 were arguably examples of uses of the common law approach that repudiated original understandings that were more desirable than the results produced by the case law. While I understand the book is supposed to be a short introduction to the layman of the common law theory, this is probably a severe limitation on argument by example.
The part of the book that I found most interesting was the chapters on reconciling the written constitution and the living constitution. Straus (wisely I would add) does not advocate chucking out the written constitution. Instead, the written constitution serves important functions as both a legitimating device for case law (it is easier to get people to accept the results by citing portions of the text) and as a coordination/framework to start with. Straus makes the argument that for some problems, it is better that there is an answer even if it is not the best one, and often the constitution provides that answer as a starting point. This resolves the moral legitimacy questions of the founders binding later generations, since each generation adds to the constitution by interpreting it through common law. In my humble opinion, the best part of the book is the last chapter which discusses the relationship between constitutional change and the amendments. Straus argues interestingly that there are examples of constitutional change despite the explicit rejection of an amendment (the equal rights amendment/child labor law amendment), that constitutional change can occur without any textual amendment (the new deal rise of the administrative state for example, or the Madison's view on the evolving constitutionality of a national bank), the sidelining of constitutional amendments that society was not ready for (the Reconstruction amendments), amendments that merely ratified changes that already occurred, bringing outliner states in line with the substantial majority of state practice (by the time of the adoption of the 17th amendment, most states already through state law mandated the direct election of its senators), and amendments that restored common law understandings (the 16th to ratify the common understanding that the government could impose an income tax or the 22nd which limits terms to two).
In short, worth a read for sure.
The book proceeds in a few parts, first the book lays out three major criticisms of originalism, which it sets up as a contra-theory, then moves to a brief theory of the common law constitution, giving two examples of the common law constitution's success. The book then concludes on the interaction of the written and common law constitution, which personally I thought was the most novel and interesting part of the book.
Straus's critiques of originalism starts by laying out the various desirable concepts that would not exist under an originalist interpretation, before arguing that originalism makes lawyers amatuer historians (in answering difficult specific questions that may not have good historical answers), that judges cannot translate/apply well historical concepts to modern day issues, and that the theory lacks a moral justification for why the founding should bind the present. Straus argues that moderate originalism or living originalism ducks the difficult un-desirable consequences of originalism by appealing a higher generality of original meaning, but argues rightfully that this erodes the determinacy that is the one of the major advantages that originalism purports to offer compared to other constitutional interpretations.
Straus then moves to explain his positive theory of the common law constitution which he claims is both a descriptive (this is probably true, read any SCOTUS case and it will refer to case law more than the text in most instances) and desirable explanation for constitutional interpretation. Straus cites Burke as justification for a common law system, that is epistemological modesty about having all the right answers, and a reliance on experience rather than abstract logic. One of the arguments Straus makes that I think is incomplete is his response to the originalist critique that non-originalist interpretations are undemocratic because it allows judges to slip their policy preferences into the law. Straus argues that this phenomenon does not occur because the interpretation is non-originalist, but because of judicial supremacy. While, the argument has some merit, it ducks the issue that given a world where judicial supremacy is accepted, what method binds judges? If originalism is determinate, it would bind judges more than less determinate theories. Straus then gives two major examples of common law successes. The first is the freedom of expression, which both shows some of the weaknesses of originalism and the strength of common law. The current historical consensus is that the first amendment was only understood originally to prohibit prior restraint, and not prohibit punishment post-publiciation. However, the Supreme Court's first amendment doctrine evolved out of experience to protect the full expression that we enjoy today. Straus traces the doctrinal development of the current doctrinal tests as evolving over experience, not driven by the bare text or the original understanding of the first amendment. The second example Straus cites as a success of the common law is Brown v. Board of Education. This example showed in more detail common law evolution. Straus argues that the case law before Brown laid the foundation for the holding that separate is never equal. Earlier case law established that states could not rely on demand side arguments to not provide equal accommodations (McCabe), and that equal accommodations required more than tangible equality, that states could not symbolically discriminate (Gaines). While these earlier cases not repudiate separate but equal, they were moving towards a direction that would be made explicit in Brown.
While the theory that Straus lays out has its appeals, I wonder if his method of proof of cherry picking successes really shows the desirability of the common law approach to the constitution. After all, Plessy and the Civil Rights Cases of 1883 were arguably examples of uses of the common law approach that repudiated original understandings that were more desirable than the results produced by the case law. While I understand the book is supposed to be a short introduction to the layman of the common law theory, this is probably a severe limitation on argument by example.
The part of the book that I found most interesting was the chapters on reconciling the written constitution and the living constitution. Straus (wisely I would add) does not advocate chucking out the written constitution. Instead, the written constitution serves important functions as both a legitimating device for case law (it is easier to get people to accept the results by citing portions of the text) and as a coordination/framework to start with. Straus makes the argument that for some problems, it is better that there is an answer even if it is not the best one, and often the constitution provides that answer as a starting point. This resolves the moral legitimacy questions of the founders binding later generations, since each generation adds to the constitution by interpreting it through common law. In my humble opinion, the best part of the book is the last chapter which discusses the relationship between constitutional change and the amendments. Straus argues interestingly that there are examples of constitutional change despite the explicit rejection of an amendment (the equal rights amendment/child labor law amendment), that constitutional change can occur without any textual amendment (the new deal rise of the administrative state for example, or the Madison's view on the evolving constitutionality of a national bank), the sidelining of constitutional amendments that society was not ready for (the Reconstruction amendments), amendments that merely ratified changes that already occurred, bringing outliner states in line with the substantial majority of state practice (by the time of the adoption of the 17th amendment, most states already through state law mandated the direct election of its senators), and amendments that restored common law understandings (the 16th to ratify the common understanding that the government could impose an income tax or the 22nd which limits terms to two).
In short, worth a read for sure.
December 10, 2010
Great intro to common law and the idea of living constitution.
August 26, 2022
Effective criticism of originalism (though, to be fair, easy to criticize). However I’m less impressed by the his argument for living constitutionalism. His argument is consequentialist, which fair enough, but it doesn’t exactly meet originalism on its own grounds. He should have made that more clear at the outset. Relies a bit too much on one Jefferson quote. If reframed, could be quite compelling. Very effective demonstration that our constitutional history has been through a common law/living constitutional approach, and shows good examples of when that resulted in good. However, cherry picks his history a bit to say that development of con law has been a moral good. I think his approach would have real challenges when confronted w current scotus establishing a line of decisions w bad consequences. Prefer chemerinsky’s approach in we the people
June 2, 2018
It took me a long time to read this little book. I’m glad I did. The originalist approach to constitutional law never sat well with me. Of course you have to start with the text of the Constitution but whose original intent should inform decisions - the drafters, the ratifying legislatures, James Madison? Strauss points out the obvious, that most constitutional cases rest not on a specific phrase of the Constitution but on earlier Supreme Court cases. In other words, our constitutional law, like all non statutory court decisions, is a common law structure, based on a millennium of common law. I get that and I like it.
Read
November 30, 2023As someone who leans originalist, I have to say I found this compelling, although that may be in part because I'm not as familiar with academic originalist scholarship.
December 28, 2016
This book offers an alternative to the theory that "originalism" is a reliable and unbiased way to interpret the constitution and shows that this idea is seriously flawed. The "common law" method of judicial ruling is proposed as a more realistic way and in fact the method that is used in practice. "Originalism" is shown in most cases to be just another way to achieve the results that the judge wants.
As to the idea that nothing should change in constitutional law without an amendment -- that is unsustainable. The procedure for amendments gives veto power to the smallest states and they will never allow significant diminution of their power. Should a procedure adopted by people 225 years ago be considered infallible and eternal ?
Even the 13th (abolishing slavery), 14th (equal protection for all citizens), and 15th (granting the vote to all [male] citizens) amendments were only passed because the confederate states were forced to approve them before being readmitted to the union. If those states were allowed to vote freely would those amendments ever have been adopted -- maybe in 1964? Blacks would literally never have been given the vote in the South if the true procedure for amendments had been enforced. Republicans are still trying to suppress their vote today in 2016!
Only one or two amendments of other than those of purely procedural effect (i.e.. women's suffrage) have been passed after the first twelve which were essentially part of the original constitution.
As to the idea that nothing should change in constitutional law without an amendment -- that is unsustainable. The procedure for amendments gives veto power to the smallest states and they will never allow significant diminution of their power. Should a procedure adopted by people 225 years ago be considered infallible and eternal ?
Even the 13th (abolishing slavery), 14th (equal protection for all citizens), and 15th (granting the vote to all [male] citizens) amendments were only passed because the confederate states were forced to approve them before being readmitted to the union. If those states were allowed to vote freely would those amendments ever have been adopted -- maybe in 1964? Blacks would literally never have been given the vote in the South if the true procedure for amendments had been enforced. Republicans are still trying to suppress their vote today in 2016!
Only one or two amendments of other than those of purely procedural effect (i.e.. women's suffrage) have been passed after the first twelve which were essentially part of the original constitution.
July 21, 2016
A bold work in the face of out-crying for more "original intent" and "textualist" constitutional judging. Professor Strauss makes a strong case for a common law-like approach to resolving constitutional issues. With trial, error, give, take, and gradual steps reflecting the best of society's evolution, he argues there can be no wiser way to to apply the original words of the relatively short document the constitution is, words defying precision and inviting interpretation. And as he does, he demonstrates how even those who profess adherence to the document's text, can still steer to a favored result; not necessarily one that comports with democratic tradition. And this, of course, is the first line of attack on those who decry the "living constitution."
August 5, 2010
This subject is very controversial right now so I thought I'd try this book. It was surprisingly accessible since I don't speak legalize. It is dense though and quite academic but I found it a fascinating look at how some idealize the working of the Constitution and court law verses examples of how it usually works. Decisions are often made based on precedent and what is good for society instead of actual direction in the constitution. In the end, the author praises the constitution for its mix of specificity and broadness. And it isn't too long.
December 3, 2013
This is a really good book for people interested in constitutional law and specifically a very good introduction to the rationale and arguments behind having a living constitution. Proponents of originalism will have fun finding the holes in his arguments and the logical leaps, and proponents of a more living constitution will have fun agreeing with him constantly: overall a win-win!
July 26, 2021
Whether or not you agree with Strauss' Common Law approach to interpreting the Constitution, this book is an exceptionally clear, lucid, compelling account of living constitutionalism. Having been borderline convinced by Scalia's arguments for originalism, after reading "The Living Constitution," I am thoroughly convinced of Strauss' approach.
May 1, 2011
Only recommended for people looking for an intro to constitutional interpretation. I still prefer the Scalia/Tribe discussion in A Matter of Interpretation.
May 15, 2013
Generally solid arguments
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