Reason, the Common Law, and the Living Constitution (review of The Living Constitution by David Strauss) (original) (raw)

This article reviews David Strauss's recent book, The Living Constitution. The thesis of Strauss's book is that constitutional law is a kind of common law, based largely on judicial precedent and commonsense judgments about what works and what is fair. In defending this claim, Strauss argues that central constitutional prohibitions of discrimination and protections of free speech have a common-law basis and that the originalist should consequently reject them. The review disputes this contention. It examines Strauss's account of the common law and argues that it cannot support our First Amendment protections of subversive advocacy, as Strauss says it does. The review then offers an alternative account of the common law based on the "classical" common-law theory associated with Coke and Hale. The latter account does support our protections of subversive advocacy but is much less appealing to those distrustful of ambitious and large-scale judicial action. Reason is the life of the law.-Edward Coke  I thank reviewer Michael Dorf for his helpful suggestions. 2 In The Living Constitution, David Strauss argues that constitutional law is a kind of common law. For Strauss, this means that constitutional law is based on judicial precedent as well as broader social and political traditions, shared understandings, and judgments about what is fair and what works. 1 Our "living Constitution," says Strauss, is this body of constitutional common law, along with the written constitutional text. It is "living" in the sense that it changes in response to changes in our world. The Living Constitution is an important book, despite being largely adapted from Strauss's earlier work. 2 It is aimed at and appears to have succeeded in reaching a wider audience than Strauss's academic publications. 3 It arrives at an important time in the history of our country, when there is a sense that politically conservative judges have become more willing to strike down legislation they view as unconstitutional, complicating the long-standing association between judicial activism and the political left. And for the most part, The Living Constitution is well written and well argued. Strauss undoubtedly succeeds in lending an air of plausibility to the idea of a "living"