The Living Constitution

Front Cover
Oxford University Press, May 19, 2010 - Law - 176 pages
3 Reviews
Supreme Court Justice Antonin Scalia once remarked that the theory of an evolving, "living" Constitution effectively "rendered the Constitution useless." He wanted a "dead Constitution," he joked, arguing it must be interpreted as the framers originally understood it. In The Living Constitution, leading constitutional scholar David Strauss forcefully argues against the claims of Scalia, Clarence Thomas, Robert Bork, and other "originalists," explaining in clear, jargon-free English how the Constitution can sensibly evolve, without falling into the anything-goes flexibility caricatured by opponents. The living Constitution is not an out-of-touch liberal theory, Strauss further shows, but a mainstream tradition of American jurisprudence--a common-law approach to the Constitution, rooted in the written document but also based on precedent. Each generation has contributed precedents that guide and confine judicial rulings, yet allow us to meet the demands of today, not force us to follow the commands of the long-dead Founders. Strauss explores how judicial decisions adapted the Constitution's text (and contradicted original intent) to produce some of our most profound accomplishments: the end of racial segregation, the expansion of women's rights, and the freedom of speech. By contrast, originalism suffers from fatal flaws: the impossibility of truly divining original intent, the difficulty of adapting eighteenth-century understandings to the modern world, and the pointlessness of chaining ourselves to decisions made centuries ago. David Strauss is one of our leading authorities on Constitutional law--one with practical knowledge as well, having served as Assistant Solicitor General of the United States and argued eighteen cases before the United States Supreme Court. Now he offers a profound new understanding of how the Constitution can remain vital to life in the twenty-first century.
 

What people are saying - Write a review

LibraryThing Review

User Review  - 4bonasa - LibraryThing

A brief, favorable discussion of constitutional change through the process of judicial review based on the evolution of common law. His arguments are rational but flawed because the process he favors ... Read full review

Contents

Do We Want a Living Constitution?
1
Originalism and Its Sins
7
The Common Law
33
Freedom of Speech and the Living Constitution
51
Brown v Board of Education and Innovation in the Living Constitution with a Note on Roe v Wade
77
The Role of the Written Constitution Common Ground and Jeffersons Problem
99
Constitutional Amendments and the Living Constitution
115
Index
141
Copyright

Other editions - View all

Common terms and phrases

About the author (2010)

David A. Strauss is the Gerald Ratner Distinguished Service Professor of Law at the University of Chicago, and one of the nation's leading constitutional law scholars. He has also served as Special Counsel to the United States Senate Judiciary Committee and Assistant Solicitor General of the United States, and argued eighteen cases before the United States Supreme Court. David Strauss is an editor of the Supreme Court Review.

Bibliographic information