Monday, May 14, 2012

The Roots of the Living Constitution


My latest article, The Roots of the Living Constitution, is now available on SSRN. It discusses David Strauss's theory of common law constitutionalism as developed in his important 2010 book, The Living Constitution (Oxford University Press) and compares it with the theory of constitutional change in my recent book, Living Originalism (Harvard University Press 2011).

Last fall, Jim Fleming held a conference at B.U. Law School on our two books, and each of us was asked to write about the other's book. These essays will appear in a symposium in B.U. Law Review later this year. This is my essay about David's work.

I had already discussed part of David's theory in chapter 3 of Living Originalism--in particular, his view that the constitutional text is less important than Supreme Court precedent and that it largely serves as a focal point to coordinate political action.

In this essay, I discuss his theory of constitutional change and compare it with my own. I also point out that one could use some of David's other recent work-- his article on the "modernizing" mission of judicial review and his essay on Carolene Products--to present a fuller theory of constitutional development than the one he offers in The Living Constitution.

Here is the abstract:
This essay discusses David Strauss's The Living Constitution (2010), comparing his theory of common law constitutionalism with the account of living constitutionalism featured in my 2011 book, Living Originalism.

Strauss’s short book focuses primarily on Supreme Court decisions and common law adjudication to explain American constitutional development. As a result, its portrait of the processes of constitutional change is incomplete.

An emphasis on common law decisionmaking inevitably deemphasizes other important features of American constitutional development. These include (1) the role of political parties, social movements, interest groups, civil society organizations, and litigation campaigns in changing popular and elite understandings of the Constitution and eventually reshaping constitutional law; (2) the importance of the judicial appointments process and strategies of partisan entrenchment in changing legal doctrine and generating constitutional revolutions; and (3) the role that federal judges play as part of the national political process in legitimating, policing and maintaining the existing constitutional regime.

These features of constitutional development, in which federal judges play only one part, are the real motors of change in America's living Constitution. They offer a better descriptive account of constitutional development in the United States than the model of common law reasoning. Equally important, attention to these institutional features offers a better normative account of constitutional change. These institutional features help explain how the work of courts -- when properly viewed as only one part of a larger system of constitutional development -- can promote the democratic legitimacy of the political system as a whole.

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