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The Living Constitution (Inalienable Rights) Hardcover – May 19, 2010

ISBN-13: 978-0195377279 ISBN-10: 0195377273

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Product Details

  • Series: Inalienable Rights
  • Hardcover: 176 pages
  • Publisher: Oxford University Press (May 19, 2010)
  • Language: English
  • ISBN-10: 0195377273
  • ISBN-13: 978-0195377279
  • Product Dimensions: 8.3 x 5.7 x 0.9 inches
  • Shipping Weight: 9.6 ounces (View shipping rates and policies)
  • Average Customer Review: 3.7 out of 5 stars  See all reviews (11 customer reviews)
  • Amazon Best Sellers Rank: #578,165 in Books (See Top 100 in Books)

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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"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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Most Helpful Customer Reviews

17 of 22 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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20 of 29 people found the following review helpful By JMB1014 on May 18, 2010
Format: Hardcover Verified Purchase
This is an excellent introductory volume for people who feel confused by the debate over "original intent" versus a "living Constitution." David A. Strauss is a law professor at the University of Chicago. His book is a quick read (139 pages), with no notes, bibliography or other impedimenta - just an index. It's a very lucid explanation of legal reasoning and how the Supreme Court has followed this basic process over time. Hence the "living constitution" is really just an instance of the English common law tradition functioning normally. This book will teach many Americans how legal reasoning actually operates in practice. It is a common-sensical and conservative process that seeks at once to promote predictability and fairness. By and large, it has worked well.

The phrase "living Constitution" has been denigrated by people who seek to turn back the calendar to a day when more "traditional" values were imposed by law. In so doing, they have invoked an historical fiction, the "original intent" of the framers of the Constitution. The myriad problems arising from this effort, if not its disingenuousness, have been discussed with insight and erudition by such excellent minds as Jack Rakove ("Original Meanings")and Akhil Reed Amar ("The Bill of Rights," and "The American Constitution: A Biography"), to name just two.

The real point of this book, I think, is to explain basic legal reasoning to a mass audience. This does a great service. It also shows how naturally the common law evolves, how it tends to restrain judicial activism and yet to permit flexibility as times and circumstances change.
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1 of 1 people found the following review helpful By Greg Bassham on March 7, 2013
Format: Hardcover
This is a gem of a book: brief, beautifully written, and powerfully argued.

Strauss has two main aims: to critique originalism and to defend a common-law approach to constitutional adjudication. The critique of originalism is telling but overly focused on weaker versions of originalism. More firepower should be directed at the view I dubbed (in my 1992 book on original intent) "moderate originalism." Moderate originalists seek to ascertain the "principle" or "legal proposition" the adopters understood themselves to be enacting, rather than the adopters' specific intentions or expected applications. Strauss's main criticism of this approach is that this leaves judges free to read constitutional language at whatever level of generality or abstractness they please, and hence amounts to a blank check to read their own values into the Constitution. This is overstated. Usually the historical sources indicate at least roughly what the appropriate level of generality is.

The defense of a common-law approach to constitutional adjudication (i.e., an approach rooted centrally in precedent and judge-made doctrinal elaboration) is brief but quite convincing. This is the approach we've long had, it's what judges and lawyers are good at, it draws upon the accumulated collective wisdom of many generations, it's generally effective in cabining judicial discretion, it has kept the Constitution flexible, revered, and up-to-date, and it has made us a juster, stronger, and more united nation. That's a pretty good track record. And it's a pragmatic approach to constitutional decision making that very much fits with the American spirit.

Bravo, Professor Strauss!
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