The Living Constitution (Inalienable Rights)

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. As Dean Roscoe Pound of the Harvard Law School put it in his book, "The Spirit of the Common Law," the common law is "essentially a mode of judicial and juristic thinking, a mode of treating legal problems rather than a fixed body of definite rules...." This is a critical distinction. Some so-called conservatives insist that judges must simply apply the law like automatons, as if it were a "fixed body of definite rules." They then seek to enlist the founding fathers in declaring what those rules are, or how definite they must be. But as Dean Pound and centuries of legal history demonstrate, this notion is far removed from the truth, and remote from any useful notion of adjudication. All Anglophone law schools, lawyers and judges are engaged in the process Dean Pound discusses.The common law tradition arose in England over the course of centuries. We imported it to this country in part because it was workable and practical, and because it was brilliantly and systematically expounded by Chief Justice Edward Coke in the 17th century and by Lord William Blackstone shortly before the American Revolution. No one would suggest that the common law tradition means the law is the captive of judges' subjective whims. Such an assertion would have sounded ludicrous to the English as well as to the founders. But as Strauss - and volumes of legal history - unsurprisingly demonstrate, the common law tradition is the key to constitutional interpretation.The common law is an inherently conservative instrument. It evolves incrementally. Those who complain about the "living Constitution" argue that judges merely rule according to their subjective prejudices. They contend that it is the legislative branch that should be charged with interpreting the Constitution. Of course, all three branches of government must interpret the Constitution from time to time. But the legislative branch should not have the last word in determining whether its own enactments meet constitutional scrutiny: To borrow from Chief Justice Coke, no one (including the legislature) may be the judge of his own cause. The function of determining whether legislation conforms to the Constitution has been and still is wisely confided to the courts, which by virtue of centuries of practice (as reflected in published opinions) have substantial expertise in the area and are independent. One also hears complaints that judges are insulated from reality. But courts are not insulated - they are independent. And they are independent precisely so they are not subject to being influenced by lobbyists or terrified by a challenger in a primary election.To show how the common law works, Strauss discusses the evolution of constitutional thought in relation to two major issues: freedom of speech and segregation in public schools. He explains how the "clear and present danger" test in freedom of speech cases evolved, implicating not just such considerations as the threat of imminent harm, but also that some kinds of speech have lower societal value (libel, obscenity, fighting words), while other kinds of speech have more societal value (great literature, political speech).Strauss goes on to discuss how Brown v. Board of Education (1954) was far less a radical overturning of an entrenched precedent, Plessy v. Ferguson (1896), than a logical step in the development of the law. In so doing, he uses an example from the law of torts, where customers injured by dangerous products originally were barred from suing the manufacturer unless they had a contractual relationship with it. At first, the fact that a product was inherently dangerous overcame the requirement of a contractual relationship. As it became harder to draw a line between ordinary products and those that were inherently dangerous, however, the old requirement of a contractual relationship was found to have outworn its purpose and customers were permitted to sue the manufacturer who had created a foreseeable risk of harm. Thus, in products liability cases, as in racial equality cases, the law evolved to meet the new demands posed by changed circumstances. Strauss shows the development of the law by discussing cases on racial equality decided after Plessy that gradually undercut the Plessy decision until it was no longer tenable.Strauss does what law professors do every day: teach the law by showing how it evolved. His explanation, however, is so concise and clear that it makes the discussion seem not just sensible but compelling. Thus we see that the law works.As Strauss points out, we never wrangle over some constitutional issues because they are cut and dried (you have to be 30 years old to be a senator) or because certainty is required (January 20 is the day the new president takes office, no matter how unstable the current domestic or world situation). Other provisions require more effort to interpret, but this is because the founders brilliantly provided that some matters could be spelled out specifically in advance, while others would have to be expressed in more general terms, which could be adjusted to changing needs and times (e.g., the "necessary and proper" clause in Article I, Sec. 8).Interestingly, Strauss does not consider amendments to the Constitution to be part of what makes it a living document, since the amendment process is so onerous, slow, and seldom used. He points out how some amendments merely ratified the status quo, or served to clean up outliers, resolved technical issues, or were ahead of their time. As he offers these judgments, which seem balanced and reasonable, he also explains some of the less familiar amendments in a way that will have readers raising their eyebrows and saying "Oh, so that's where that came from."At the outset of the book, Strauss sets out three objections to originalism:That it is often, as a practical matter, impossible even for professional historians to discover what the intentions were of various founders with respect to matters discussed in the Constitution.That even if an intent of the founders could be discovered, it would pertain to the understanding they had about their world: how does one go about trying to fit that understanding to our world?That as Thomas Jefferson pointed out, one generation is to another as one sovereign nation is to another. The world belongs to the living. The notions of people long dead cannot bind us in the present or future.Strauss correctly observes that the third of these objections is by itself fatal to originalism.The founders were not so impressed with themselves that they felt their "intentions" should be forever imposed on posterity. Had they been dedicated to such a dubious project, they would surely have done a better job of documenting their debates and compromises during the Philadelphia convention. But little remains of those deliberations aside from the notes kept by James Madison. The Constitution, moreover, reflects their understanding that the future could not be shackled forever to the time in which they lived. They realized that the slave trade, for example, would prove intolerable and therefore provided that it could be abolished by at least 1808. So was their "original intent" to permit the slave trade, or was it that the slave trade should be abolished? And what does this say, if anything, about their intentions toward the institution of slavery - a word that did not even appear in the Constitution until the Thirteenth Amendment was adopted in 1865? Most damning of all to the originalist position is what Thomas Jefferson said on the subject. In a letter dated July 12, 1816, to Samuel Kercheval, Jefferson wrote"Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors." He added, "Let us follow no such examples nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs." He even called for revision of the constitution at stated periods. While originalists would love to claim Jefferson as one of their own, his words - and indeed his whole life - prove that he was completely at odds with their approach.Men like Jefferson and Franklin, who were devotees of science, were fascinated by the progress men could make in trying to understand and improve their lives. Jefferson was an eager student of nature and did considerable experimentation with crops on his plantation. He famously wrote his "Notes on the State of Virginia" to refute the widely read claims of the French naturalist Buffon about the supposedly weak, degenerate, and insipid life forms to be found in the New World. The idea that such men, who were committed to the growth of knowledge, would seek to confine all future generations to the limited understanding they possessed of the universe in 1787, is worse than laughable. It can only be explained by the polemical purposes of those whose arguments for a regressive social order are so feeble that they have to seek refuge behind an imaginary "original intent" that they erect - as if the founders wanted their limited knowledge and often unarticulated, conflicting, or ambivalent intentions to restrict the great national experiment forever.Given the explicit language of Thomas Jefferson, quoted above, it is apparent that "originalism" actually belies and defies the express intent of Jefferson, one of the most eminent of the founders. It seems paradoxical but it was his original intent that his original intent should not govern future generations!Original intent also appears anomalously restrictive when one considers that the founders never contemplated the existence of an Air Force, though they expressly provided for the Army and the Navy. And ask an originalist what the original intent was with respect to the Second Amendment's use of the term "arms." The founders had no concept of assault rifles or machine guns, let alone nerve gas, laser-guided bombs, predator drones, or nuclear weapons. How do we impose an intention on them to assert what they could not have foreseen, namely, that ordinary householders in the 21st century should have a personal, constitutional right to be able to obliterate a small army in a matter of seconds, based on the founders' notions about the 18th century saber, musket or pistol? Likewise, the Eleventh Amendment says nothing to prohibit a person from suing her own state - just other states. Yet even "textualists" read an unwritten provision into the Eleventh Amendment because it suits their view of how "sovereign" the states should be. When given this kind of a taste of their own medicine, originalists collapse in helpless sputtering and exasperation.Exposed to Strauss' very sensible discussion, the concerns of originalists reflect opportunism and disingenuousness. After all, we should not expect lawyers and judges to become armchair historians, especially under the time pressures of litigation and in the face of hotly contested issues. We should not pretend the founders had some monolithic intent, least of all with respect to matters of which they had no concept. And as Jefferson pointed out, the relationship of one generation to another is like that of one sovereign nation to another: we cannot expect to bind future generations by the intentions of people who are long since dead.In short, there will always be those who resist change and those who welcome it. If you really want to see "judicial activism" at work, you will not find much of it in the common law tradition. A far better example is the recent decision - by the so-called conservatives on the Supreme Court - in Citizens United v. Federal Election Commission.

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. But obviously, if the issue was unknown to the enactors, or if their views are forever lost to us due to the passage of time, then there is no "original understanding" of that particular issue, and some other method of constitutional interpretation must be relied on.The second and third objections are far less compelling to me. The second objection is IMO a non-issue. To ask "well, we know that in 1880 the enactors of the 14th amendment did not believe its equal protection clause outlawed employment discrimination against women, but would they believe that if they were living in the year 2000, with all the economic/cultural/technological changes that have developed over those 120 years?" is an irrelevant question. It's like asking if the 1969 Congress that enacted the Clean Air Act would still enact it if that Congress were to debate the issue in 2010: it's purely speculative and ungermane, since neither statutes nor constitutional provisions have expiration dates on them.Likewise, the 3rd objection is both shallow and disingenuous. Shallow because Jefferson clearly understood that the constitution, like laws enacted by the legislature, are subject to change by later generations, who can amend the constitution or pass new legislation to supersede what previous generations have accomplished. Disingenuous, because the invocation of Jefferson seems to be a tactical decision by Strauss, a way to tweak originalists by citing one of the very greatest of our founding fathers. Yet Jefferson can also be quoted to support an originalist view. For example, in 1801 he said:"The Constitution on which our union rests, shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United States, at the time of its adoption....These explanations are preserved in the publications of the time, and are too recent in the memories of most men to admit of question." (Writings of Thomas Jefferson, quoted from a letter dated 3/27/1801).The first part of this quote clearly indicates that Jefferson believed that constitutional provisions should be interpreted according to original understanding, not "modern, evolved" standards of meaning as David Strauss would contend. The second part speaks to the need i identified before, that of knowing within the bounds of reasonable doubt what the enactors understood a provision to mean.Beyond all this, though, is David Strauss's contention that a "living constitution", as defined by a common-law like accretion of judicial precedent in constitutional matters that leave the original meaning of the text behind, is necessary because otherwise our constitution would become an archaic relic unable to meet the demands of a changing society, and that the formal amendment process is too slow and cumbersome. Professor Strauss correctly notes that Jefferson believed that our institutions must evolve with the development of society; however, he crucially fails to note that to Jefferson, the primary mechanism of such innovation was to be the actions of the legislature. Constitutional provisions are expounded in broad, general language not to enable future judges to interpret them in light of changing societal conditions, but to permit elected bodies, like legislatures and congress, wide latitude to address the problems of today. Legislative bodies, which directly reflect the ebbs and flows of societal change and are accountable to the people, were Jefferson's preferred vehicle of constitutional innovation, not the decisions of insulated, life-tenured court judges. On this point, unlike on many others, Jefferson was in agreement with John Marshall. As Jean Edward Smith (1996) writes "When (in McCulloch v. Maryland) Marshall spoke of the Constitution as "intended for ages to come" and of the need to adapt it "to the various crises of human affairs", he was alluding to the responsibility of Congress, not the Court. And the limits on Congress were defined by the political process, not the judiciary" (p. 445).Thus, for example, while the enactors of the 14th amendment did not intend for it to ban employment discrimination against women, it also was not intended to prevent Congress or the state legislatures, at the time of the enactment or in the future, from enacting legislation that does protect women from employment discrimination should that type of legislation be deemed necessary or advisable. Jefferson was far more wary of "innovative" actions by judges, exemplified by his belief that "if federal judges have the final word over its meaning,the Constitution would be a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please". Yet it is exactly this type of judicial activism that Strauss means when advocates a "living constitution".Strauss's fundamental error is revealed on page 103 when he says that "We cannot say that the text of the constitution does not matter ... no (textual) provision of the constitution can be overruled in the way a precedent can, or disregarded the way original understandings often are". What Strauss is saying here (well, he wouldn't put it this way, but this is my view of the matter) is that when a judge wants to be activist, to impose his/her personal policy preferences on a case, it's very important that the judge somehow, through clever verbal gymnastics, no matter how convoluted, "ground" that ruling in some actual constitutional-textual language. This is very important for achieving the political purpose of maintaining respect for the court in the eyes of the public. But to me, Strauss creates a false dichotomy: The text of the constitution is ONE AND THE SAME with its "original understanding". The 'text', the actual words of the constitution, does not exist independent of the original understanding of those words, the text is merely the communicative vessel used to convey that original understanding. That's the way language works. It's a method to convey meaning. Thus, to invoke the Due Process Clause of the 5th amendment to outlaw Federal segregation laws (as the Court did in 1955) when the enactors of the 5th amendment clearly (as Strauss admits) did not intend for it to mean that, is the SAME THING as ignoring the "text" of the constitution, since the text and original understanding are one and the same.Overall, i recommend this book. One will learn alot about constitutional history, and Professor Strauss is surely correct in that the "living constitution" view is in fact the dominant way in which the Court has gone about its business in practice, regardless of what legal theoreticians have thought.But, don't expect to be convinced by much Professor Strauss has to say about why this is a good thing.

There has been a debate over the past several decades on whether the US Constitution is a living document that should be interpreted according to current mores and standards or whether it is a static document that should be interpreted using only the meaning found in the original wording of the document.The author, in this book, makes the case that the Constitution is, in fact, a living document that should be interpreted by modern standards and by using principles of common law. There are examples given that, quite frankly, are very persuasive. For instance, if the Constitution were interpreted using original language, we would not have the freedom of speech that we now enjoy. A careful reading of the First Amendment will show that only Congress was prohibited from making laws that abridged free speech. There were no constraints on the states or on other governmental bodies.Whether or not you agree with the author on how the Constitution should be interpreted, this book will make for some though provoking reading and interesting discussion. The book was well written, fairly easy to understand and should be read by all who are concerned about where the Supreme Court is now and where it is headed.

The book provides a very solid defense of the concept of the "living Constitution." As a very firm libertarian, I have long held the concept suspect, but I have gained at least a more nuanced understanding of when and why I oppose the idea of the living Constitution.

The author talks about our constitution as a "living document" and expertly draws the distinction between this and the originalist interpretation as a "dead document."