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The Living Constitution (INALIENABLE RIGHTS) Hardcover – May 19, 2010

ISBN-13: 978-0195377279 ISBN-10: 0195377273 Edition: 1st
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Editorial Reviews

From Publishers Weekly

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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Review


"If David Strauss's marvelous book doesn't convince Justice Scalia to accept rather than abhor the idea of a living constitution, nothing will." --William Wargo, The Vermont Bar Journal


"Writing in prose that laymen will find lucid and inviting, Strauss makes the usually fuzzy idea of a living Constitution rigorous and substantive."--Publishers Weekly


"Succinct and elegant"--Steve Chapman, Chicago Tribune


"Strauss keeps a low public profile but legal scholars know him to be a first-class mind. This book, written for the general reader, shows that he is also a master stylist, whose prose is Orwellian in the good sense: clear as a pane of glass."--The New Republic


"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."--The Law & Politics Book Review


"Timely and important...a novel and creative contribution to the ongoing debate about the nature of the U.S. Constitution, and will influence the dialogue for years to come."--Harvard Law Review


"I regard The Living Constitution to be a tremendous success. It deserves to be widely read by students, lay people, and specialists."--Notre Dame Philosophical Reviews


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Product Details

  • Series: INALIENABLE RIGHTS
  • Hardcover: 176 pages
  • Publisher: Oxford University Press; 1 edition (May 19, 2010)
  • Language: English
  • ISBN-10: 0195377273
  • ISBN-13: 978-0195377279
  • Product Dimensions: 8.3 x 0.9 x 5.7 inches
  • Shipping Weight: 9.6 ounces (View shipping rates and policies)
  • Average Customer Review: 3.9 out of 5 stars  See all reviews (14 customer reviews)
  • Amazon Best Sellers Rank: #132,839 in Books (See Top 100 in Books)

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3.9 out of 5 stars
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19 of 24 people found the following review helpful By Stephen J. Jaros on May 18, 2010
Format: Hardcover Verified Purchase
This book does have a few commendable features. It is written in laymen's language, you don't have to be a constitutional law scholar like David A. Strauss to comprehend the arguments. And it's short. Won't take more than a couple of hours to read. But as a critique of the "originalist" constitutional doctrine, it is hit and miss. For example, Strauss argues that originalism has three major flaws (p.18):

1) the impossibility of determining what the understanding of the founding fathers was on a particular issue.
2) the impossibility of translating an original understanding so that it addresses today's problems.
3) no answer for Thomas Jefferson's question about why we, the living, should be governed by the "dead hand" of past generations, including the founders.

Of these three, the first is the most telling, because it is indeed sometimes the case that we do not know what the founders would have thought about a particular issue, because that issue simply did not exist at the time of the enactment of the constitution or a particular amendment, or because that original meaning could be lost to history. The patent-ability of new life forms as a result of genetic engineering being a good example (but, other technological examples, like cases related to airplanes and cars, are NOT good examples, since while the founders were unaware of these technological advances, it's safe to assume they would recognize them as transportation vehicles, so their understanding of ships and horse carriages would apply to them). That's why i am what Strauss might call a "sometimes originalist" - my view is that IF there is no reasonable doubt about what the enactors of a constitutional provision would have thought about a case, then that should control the decision a court arrives at.
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1 of 1 people found the following review helpful By Murray J Siskind on January 13, 2014
Format: Hardcover
If you read the other reviews you will think that this book is mostly a critique of originalism. It isn't--and that's what makes it new and exciting. Rarely does the reader come across an actual defense of living constitutionalism. If you read legal scholarship, you will see that a division of labor has sprung up over the last 20 years. Specifically, conservatives critique living constitutionalism and defend originalism; liberals critique originalism. Apparently liberals believe that if they henpeck originalism to death, living constitutionalism will somehow emerge, as if by default, as an acceptable mode of interpretation. Accordingly, liberals rarely go further. (I recently reviewed Mark Tushnet's new book which purportedly explores "competing visions" of the constitution but which, in reality, throws jabs at originalism while completely sidestepping any explanation of the liberal "vision" of the constitution.)

Here, Strauss does go further. He offers the standard issue criticisms of originalism. But he also argues that living constitutionalism can provide answers to the two normative questions that originalists have introduced into the debate over constitutional interpretation during the past 30 years: (1) that judges should cabin their individual discretion and (2) that constitutional decisions must be "legitimate." Whereas originalists find restraint in the "original public meaning" of the document and legitimacy in its democratic adoption, Strauss finds both restrain and legitimacy in the common law. Specifically, the common law has "authority" because its rules "have been worked out over an extended period" of time (38) and it restrains judges because of its incremental approach which is "cautious" and "humble.
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5 of 7 people found the following review helpful By H. Lee Cheek, Jr., Ph.D. on January 11, 2011
Format: Hardcover
Useful, Yet Imprecise Critique of Originalism

In this volume, David A. Strauss (University of Chicago) provides an accessible and lucid refutation of originalist jurisprudence. In six chapters, containing both new and previously published scholarship, originalism is analyzed as a flawed approach to interpreting the Constitution (Chapter 1); the common law as the basis for American constitutionalism is defended (Chapter 2); the "evolutionary common law" (p. 5) is applied to issues of speech and race (Chapters 3 and 4); and, the challenges of utilizing a written constitution are discussed (Chapters 5 and 6).

Unfortunately, the author's occasionally unreflective attitude towards originalism is most obvious when he argues incorrectly that the concept "cannot even claim the one advantage it purports to have over living constitutionalism" (p. 29), namely, the ability to limit judicial activism. Another weakness of an otherwise insightful critique is the author's omission of the nuances of the common law, especially in terms of how the common law contributes to a variety of modes of democratic theory.

Regardless of how one interprets the Constitution, this volume will force the reader to reconsider fundamental assumptions about the nature of constitutional interpretation and the American regime, while encountering a passionate defense of "an evolutionary form of living constitutionalism" (p. 30).

H. Lee Cheek, Jr., Ph.D.
Associate Vice President for Academic Affairs
and Professor of Political Science
Athens State University
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