The Living Constitution

There are two dominant views of the American Constitution. The first holds that it is a remarkably stable foundation of our deepest values, protected from the shifting tides of public opinion. The second holds that our interpretation of it needs to change with the times given that the founders had no idea how our society would evolve. Holders of the former view–best known as “originalists”–contend that if we don’t treat the Constitution’s meaning as fixed, judges can say that the Constitution means whatever they want it to mean. In The Living Constitution (part of the Inalienable Rights book series) acclaimed constitutional scholar David Strauss argues that these two approaches are reconcilable. Strauss begins by contending that a rigid originalist approach, which is now more powerful than ever given the Court’s conservative bent, is intellectually indefensible. While many might therefore conclude that the circle cannot be squared, Strauss shows that the common law tradition–which accounts for constant incremental social change yet which respects the constraints of tradition–drives a great deal of constitutional reasoning. The common law tradition respects the power of original understandings yet also can adust to social changes, and The Living Constitution is an eloquent defense of its role in Constitutional law.