The Living Constitution.

• Author: Denning, Brannon P.
• Position: Book review

THE LIVING CONSTITUTION. By David A. Strauss. (1) Oxford University Press. 2010. Pp. xviii + 150. $21.95 (cloth).

INTRODUCTION

Advocates for some form of original understanding as the proper means for interpreting the Constitution managed to set the terms of the interpretive debate for nearly the last three decades. In part, their success is due to the perception that "it takes a theory to beat a theory." (3) Indeed many liberal legal scholars, Jack Balkin most recently, have simply decided to beat originalists at their own game by invoking history to justify Supreme Court decisions thought to be beyond redemption as a matter of original understanding. (4) Paraphrasing Jefferson, then, are we all originalists now? (5) David Strauss's The Living Constitution answers with a resounding No!

Since the 1996 publication of his article, Common Law Constitutional Interpretatton, (6) Strauss has labored to create an alternative to originalism. In a series of articles, he argued that constitutional interpretation emulating the common law method (hereinafter "common law constitutional interpretation" or "CLCI") is superior to originalism, both normatively and as a description of what the Court, in fact, does in most cases. (7) The Living Constitution synthesizes his writings and provides, with admirable brevity, an interpretive alternative to originalism. After Strauss, no one can say that originalism's opponents lack a theory. The question rather is whether CLCI "beats" originalism by compensating for the latter's shortcomings without proving to have theoretical shortcomings itself.

As I argue below, I think that Strauss's case falls short. He devotes little space to explaining what, exactly, CLCI is and how it should be applied by courts. Strauss then contrasts CLCI with a caricatured originalism that bears little resemblance to the sophisticated theories of original understanding propounded by scholars today. In Part II, I offer my critique. Specifically, I question some of the assumptions underlying CLCI, note the absence of any definition of the "common law method," and argue that his objections to originalism are not particularly persuasive. Ultimately, I conclude that we do not have enough information about CLCI to determine whether it is, in fact, superior to theories of original understanding (as opposed to the straw-man version of originalism Strauss offers) in most cases. A brief conclusion follows.

1. THE CASE FOR COMMON LAW CONSTITUTIONAL INTERPRETATION

   Strauss lodges two main objections to originalism--the undesirability objection and the impossibility objection. Originalism is normatively undesirable because what we know the Framers did intend is morally or politically unacceptable to twenty-first century Americans. Originalism also requires submission to the (often morally inferior) choices of men longdead and is undesirable for that reason as well.

   Originalism, moreover, is impossible because (1) it is beyond the capacity of judges to discern what the Framers and Ratifiers understood the words of the Constitution to mean; and (2) even if judges could, they could not use those meanings to decide contemporary constitutional controversies. Because originalism is impossible, Strauss argues that judges who claim to employ originalism are simply reading their policy preferences into the Constitution.

   In contrast to originalism, Strauss argues that CLCI is workable, justifiable, descriptively superior, and candid. His theory is workable because it is within the capacity of judges. CLCI is justifiable because it relies on something other than blind obedience to the past. Further, he argues, it is descriptively superior because it reflects what the Court does and has done--thus giving a better account of Court practices than originalism. It is, he avers, the only source for real constitutional change in our system. Finally, he argues that CLCI beats originalism on candor because his theory is transparent and honest, as opposed to opaque and obfuscatory--characteristics Strauss ascribes to originalism.

   1. THE UNDESIRABILITY OBJECTION

      Originalism is defined by Strauss to be "the view that constitutional provisions mean what the people who adopted them--in the 1790s or 1860s or whenever--understood them to mean" (p. 3). Originalism, Strauss argues, "is not consistent with principles that are at the core of American constitutional law, and, for the most part, originalists do not claim otherwise" (p. 17). (8) On cue, Chapter 1 issues forth a parade of horribles--"what we would have to give up if we were all to become originalists" (p. 12):

      * "Racial segregation of public schools would be constitutional." (p. 12).

      * "The government would be free to discriminate against women." (p. 13).

      * "The federal government could discriminate against racial minorities (or anyone else) pretty much any time it wanted to." (p. 14).

      * "The Bill of Rights would not apply to the states." (p. 15).

      * "States could freely violate the principle of 'one person, one vote' in designing their legislatures." (p. 15).

      * "Many federal labor, environmental, and consumer protection laws would be unconstitutional." (p. 16).

      Strauss also objects that originalism violates Jefferson's injunction that the earth belongs to the living. "One generation," he writes, "cannot bind another" (p. 24). "Why should we be required to follow decisions made hundreds of years ago by people who are no longer alive?" (p. 18). Twenty-first century Americans have little in common with their ancestors of two centuries past--in fact, we have more in common with "present-day residents of New Zealand[,] ... [b]ut it would be bizarre to suggest that we should let the people of New Zealand decide fundamental questions about our law" (p. 24). So "[w]hy do we submit to the decisions of the much more distant and alien founders" (p. 24)? Strauss rejects any answer that depends on "quasi-religious notions like fidelity," and he argues instead that we should "adapt[] the Constitution to modern circumstances" when such adaptation is required (pp. 24-25). To the extent originalism would prevent this, he argues that Jefferson's objection is "ultimately fatal to originalism" (p. 25).

   2. THE IMPOSSIBILITY OBJECTION

      Equally flawed, for Strauss, is originalism's methodology. "On the most practical level," he writes, "it is often impossible to uncover what the original understandings were...." (p. 18). To be done correctly, originalism means "judges have to be historians"--better, in fact, because historians get to choose what period of time that they study (p. 19). Lawyers and judges "have no apparent qualifications for it," and "there is no reason to think that lawyers will be good at understanding the political culture of a distant century" (p. 20). More often, lawyers and judges produce law office history by picking and choosing among uncertain evidence and seeing in it "what the judge wants to see" (p. 20). By contrast, CLCI "requires judges and lawyers to be, well, judges and lawyers" (pp. 43-44).

      But even if history is available to judges and justices, it is not much help because "we would be faced with the task of translating those understandings so that they address today's problems" (p. 18). For example, Strauss asks about the Equal Rights Amendment to the Constitution (ERAS): (9) "Would the ERA have abolished all-girls and all-boys public schools? Would it have required public employers to give women pregnancy leave?" (p. 19). He claims that no "'understanding' emerged on questions like these. And if we cannot identify clear understandings about something so recent, we have very little chance of accurately uncovering the original understandings of something like the Bill of Rights" (p. 20).

      The inability of originalism to deliver what it promises means that judges who purport to use originalism to fix constitutional meaning are relying on something else--their own values and preferences. Strauss assumes, for example, that Heller (10) can be explained not as a good faith disagreement over ambiguous historical evidence but only as Justices invoking history as a fig leaf to support their preferred policy positions on gun control (pp. 20-21). Originalism, he concludes, "is not actually a way of interpreting the Constitution. It is a rhetorical trope" but one that has thrived for lack of a competitor (p. 31).

   3. THE SUPERIORITY OF CLCI

      Strauss argues that the Supreme Court does not usually decide constitutional cases by a close reading of the text and careful dissection of competing historical claims about textual meaning. Rather, the Justices debate what prior cases require (pp. 33-34). This common law approach is one "in which precedents evolve, shaped by notions of fairness and good policy" (p. 36). Strauss maintains that CLCI restrains judges better than originalism (p. 36). In addition, he offers four reasons to prefer CLCI to originalism: workability, justifiability, descriptive superiority, and candor (pp. 43-44).

      1. Workability--CLCI answers the impossibility objection to originalism by embracing an interpretive method that is within the professional competence of lawyers and judges. Unlike originalism, Strauss argues, CLCI is workable because it only requires judges and lawyers to be judges and lawyers instead of historians (p. 43). "Reasoning from precedent, with occasional resort to basic notions of fairness and good policy, is what judges and lawyers do" (p. 43). It is, he argues, their comparative advantage, not doing history. CLCI also answers part of the undesirability objection--that originalism would produce unacceptable results--because CLCI permits the introduction of contemporary values necessary to update or "modernize" the law. (11)

      2. Justifiability--For Strauss, CLCI also answers another aspect of the undesirability objection to originalism: that it requires subordination of the present to the dead hand of the past. "The common law ideology gives a...