The Living Constitution (Inalienable Rights) - Hardcover

Strauss, David A.

Hardcover

ISBN 10: 0195377273 ISBN 13: 9780195377279

Publisher: Oxford University Press, 2010

Synopsis

There are two dominant views of the American Constitution. The first holds that it is a remarkably stable foundation of our deepest values, protected from the shifting tides of public opinion. The second holds that our interpretation of it needs to change with the times given that the founders had no idea how our society would evolve. Holders of the former view--best known as "originalists"--contend that if we don't treat the Constitution's meaning as fixed, judges can say that the Constitution means whatever they want it to mean. In The Living Constitution (part of the Inalienable Rights book series) acclaimed constitutional scholar David Strauss argues that these two approaches are reconcilable. Strauss begins by contending that a rigid originalist approach, which is now more powerful than ever given the Court's conservative bent, is intellectually indefensible. While many might therefore conclude that the circle cannot be squared, Strauss shows that the common law tradition--which accounts for constant incremental social change yet which respects the constraints of tradition--drives a great deal of constitutional reasoning. The common law tradition respects the power of original understandings yet also can adust to social changes, and The Living Constitution is an eloquent defense of its role in Constitutional law.

About this title

About the Author

David A. Strauss is the Gerald Ratner Distinguished Service Professor of Law at the University of Chicago, and one of the nation's leading constitutional law scholars. He has also served as Special Counsel to the United States Senate Judiciary Committee and Assistant Solicitor General of the United States, and argued eighteen cases before the United States Supreme Court. David Strauss is an editor of the Supreme Court Review.

Reviews

The concept of a living Constitution that evolves over time is not a formula for untethered judicial activism but a necessary—and venerable—mode of interpretation, argues this scintillating treatise. University of Chicago law prof Strauss mounts a devastating attack on originalism (the doctrine most vociferously advocated by Supreme Court Justice Antonin Scalia) that constitutional law should hew to the written Constitution and the intent of its framers; such an approach, Strauss argues, is rife with contradictions, fraudulent history (it's often impossible to know what the framers meant or how they might think about modern-day issues), and ideological bias. The more fruitful—and historically dominant—interpretive school of living constitutionalism, he contends, follows a tacit common-law approach focused less on the text than on judicial precedent and changing notions of fairness and sound policy. Strauss offers meticulous accounts of how common-law processes revolutionized the consensus on core constitutional issues like freedom of speech and civil rights; indeed, he insists, they can transform our understanding of the Constitution more profoundly than formal amendments do. Writing in prose that laymen will find lucid and inviting, Strauss makes the usually fuzzy idea of a living Constitution rigorous and substantive. (May)
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Edition details

• Publisher: Oxford University Press
• Publication date: 2010
• Language: English
• ISBN 10: 0195377273
• ISBN 13: 9780195377279
• Binding: Hardcover
• Edition number: 1
• Number of pages: 170