by David A. Strauss. Oxford University Press, 2010. 170pp. Cloth. $21.95/£13.99. ISBN: 9780195377279.
Reviewed by Jack Wade Nowlin, The University of Mississippi School of Law. Email: jnowlin [at] olemiss.edu.
David A. Strauss’s THE LIVING CONSTITUTION defends a progressive conception of American constitutionalism – arguing that we should celebrate common law methods of constitutional interpretation which promote openness to constitutional change. Strauss’s book is aimed principally at a popular rather than an academic audience: This slim volume is concisely written, free of jargon, and unencumbered by footnotes. As a work of advocacy, THE LIVING CONSTITUTION deploys a careful battery of arguments for the living Constitution and against originalism. Strauss also succeeds in combining forceful discussion with an admirable degree of civility – in areas which are often marked by heated controversy. While originalists may not be convinced that Strauss has fully engaged their positions, they should not feel maligned in any way. In short, THE LIVING CONSTITUTION is an ideal introduction to one of the central areas of debate over constitutional interpretation and could be paired nicely with a comparable originalist work (such as Justice Scalia’s 1989 article “Originalism: The Lesser Evil”) for an undergraduate or graduate course.
Strauss rehearses familiar arguments against originalism to good effect: the original understanding of the Constitution is often impossible to discover given the nature of the process of writing and ratifying constitutional provisions; the original understanding, if discoverable, may be impossible to translate into a principled application at a later time in light of often dramatic post-ratification changes in social conditions; strict adherence to the original understanding would require overturning vast bodies of precedent – including legal doctrines that are now interwoven into the moral and legal fabric of the nation; originalism requires a persuasive answer to the “Jeffersonian question” of why Americans today should accept the political authority of constitutional lawmakers who have been dead for generations.
Strauss attributes much of the seeming success of originalist theory in popular political debate to the failure of living constitutionalists to articulate their position adequately as an alternative to originalism. Strauss argues that living constitutionalism often appears to empty the Constitution of any objective or settled legal meaning. In the popular imagination, living constitutionalism seems to abandon the Constitution as a serious source of legal constraint on government and to empower federal judges to make and re-make the Constitution at will.
Strauss’s version of living constitutionalism is designed to address this problem. Strauss conceives of the living Constitution as organic law [*551] grounded in the “small-c” constitution of evolving customs (including both judicial precedents and extra-judicial legal traditions) interpreted over time in light of changing understandings of fairness and good public policy. Strauss contends that the legal model for this conception of the living Constitution is found in the centuries-old Anglo-American common law tradition of judging, a tradition which combines respect for custom with gradual innovation in pursuit of reform. The living Constitution, properly conceived, is thus Burkean in spirit – grounded in a humility that respects the collective wisdom of past ages and in a cautious empiricism that pursues social improvement incrementally. Strauss maintains that the balance this approach strikes between an openness to constitutional change and a recognition of the importance of historical continuity and constraint provides an appealing conception of the living Constitution.
Strauss further maintains that this common law conception of the Constitution is superior to originalism in several important ways: it allows important changes to occur through the process of interpreting the Constitution and thus minimizes the need to resort to the cumbersome Article V amendment process; it describes our actual constitutional practices better than originalism does; it better fits with the expertise of judges in legal precedent and policy than does originalism, with its emphasis on historical analysis; it encourages judges to admit candidly the influence of their policy views on their legal judgments rather than conceal them as originalism tends to do; it has proven a better source of constraint on the discretion of judges in the Anglo-American tradition than has originalism; it provides a better reason for recognizing the authority of the Constitution (the collective wisdom of our evolving traditions) than originalism (invoking the authority of original lawmakers now long dead); and it can justify important bodies of constitutional law (such as those protecting freedom of expression and condemning segregation) in a way that originalism cannot.
Of course, all these points are debatable or their significance can be contested. If common law constitutionalism better describes judicial practice than originalism, is that an indictment of originalism or judicial practice? Do judges really have a more obvious expertise in policymaking (which would ideally require a grounding in disciplines such as economics, philosophy, political science, and sociology, among others) than in the historical analysis of legal texts? If common law judging encourages candor about the role of political judgment in legal analysis, does it not also encourage aggressive forms of judicial policymaking that can undermine the democratic accountability of government? Are legal precedents and traditions really significantly less subject to judicial manipulation than historical evidence of original understanding? Is the wisdom of tradition really superior to the authority of the founders as lawmakers?
Consider, also, Strauss’s overarching argument about the need for a balance between flexibility and constraint in constitutional interpretation, a position that he views as distinguishing his approach from both originalism and more extreme forms of living constitutionalism. Such a theory has [*552] obvious similarities to what has been called “faint-hearted”originalism (i.e., originalism qualified by some measure of respect for changing social norms and good public policy), but Strauss suggests that “faint-hearted” originalism in essence gives the game up to living constitutionalism – or else it fails to avoid many of the problems of strict originalism. If the “faint-hearted” originalist Constitution can become “flexible” at will, then its interpreters have opted for openness to change rather than respect for historical constraint; if the originalist Constitution is constrained by history even when its interpreters experience a felt-need for constitutional change, then one is back to many of the problems of strict originalism.
These insights, however, may also apply to Strauss’s theory, which could be characterized as a “faint-hearted” living constitutionalism – emphasizing the need to qualify a present- and future-oriented progressive constitutionalism with the important historical constraint of respect for precedent and tradition. One might well conclude that such “faint-hearted” living constitutionalism either gives the game up to historical constitutionalism (of which originalism is one variety) by embracing historical constraint even in the face of the felt-need for constitutional change – or else “faint-hearted” living constitutionalism ultimately fails to avoid the problems of extreme living constitutionalism because it actually embraces constitutional change at will. If the former is true, then “faint-hearted” living constitutionalism would appear to share many of the putative infirmities of originalism as, say, a barrier to legal reform grounded in the “dead hand” of the past; if the latter, then Strauss’s version of living constitutionalism ultimately may not be substantively distinguishable from the more extreme versions he claims to reject as inadequate alternatives to originalism, and it may differ only in its rhetorical invocation of custom as a framework for the articulation of constitutional change actually unconstrained by past acts.
Strauss also nicely contrasts the surface appeal of originalist theory with the much less appealing originalist practices of judges, who can be incompetent and disingenuous in their analysis of historical materials; but it is equally instructive to contrast the theoretical appeal of Burkean common law living constitutionalism with the same sort of all-too-human behavior of judges who favor the living Constitution. One suspects few legal scholars would characterize the living constitutionalism of the Warren Court as a Burkean example of humility in the face of the collective wisdom of legal custom and cautious empiricism in the pursuit of incremental legal reform. Notably, Strauss’s own revisionist celebration of the “common law genius” of the Warren Court reinforces the point that the Burkean historical constraints of common law constitutionalism could easily become in practice more rhetorical than real (Strauss 2007).
Whatever one may think of these issues, it is clear that Strauss has provided a great service to both academics and the general reading public. He has produced a short, accessible, well-written, thoughtful, and incisive defense of living constitutionalism, one which can also serve as a valuable introduction to foundational debates about the nature of constitutional interpretation. [*553]
Scalia, Antonin 1989. “Originalism: The Lesser Evil.” UNIVERSITY OF CINCINNATI LAW REVIEW. 57:849.
Strauss, David A., 2007. “The Common Law Genius of the Warren Court.” WILLIAM AND MARY LAW REVIEW. 49:845.
© Copyright 2010 by the author, Jack Wade Nowlin.