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The Living Constitution (INALIENABLE RIGHTS)
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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) Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved.
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Review
"If David Strauss's marvelous book doesn't convince Justice Scalia to accept rather than abhor the idea of a living constitution, nothing will." --William Wargo, The Vermont Bar Journal "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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Product details
Series: INALIENABLE RIGHTS
Hardcover: 176 pages
Publisher: Oxford University Press; 1 edition (May 19, 2010)
Language: English
ISBN-10: 9780195377279
ISBN-13: 978-0195377279
ASIN: 0195377273
Product Dimensions:
8.3 x 0.9 x 5.7 inches
Shipping Weight: 9.6 ounces (View shipping rates and policies)
Average Customer Review:
3.7 out of 5 stars
22 customer reviews
Amazon Best Sellers Rank:
#447,964 in Books (See Top 100 in Books)
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."
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.
Clear, cogent, and illuminating explanation of the difference between two approaches to interpreting the Constitution: originalism and the Living Constitution
A wonderfully refreshing argument for "the living constitution". Most surprisingly is that much of the argument is based in the philosophy of Edmund Burke, father of modern conservatism.
Richly informative, especially as to the claim for "originalist" interpretations of the Constitution. Strauss argues hard for "Living Constitution" - one that allows (encourages?) careful updating interpretation.
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.
Great.
Strauss demolishes originalism in a concise and accessible volume.
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