Reason, the Common Law, and the Living Constitution
SUNY Buffalo Law School
February 1, 2011
Legal Theory, Forthcoming
This article reviews David Strauss’s recent book, The Living Constitution. The thesis of Strauss’s book is that constitutional law is a kind of common law, based largely on judicial precedent and common-sense judgments about what works and what is fair. Strauss argues constitutional doctrines prohibiting discrimination and protecting free speech have a common law basis, and that the originalist would have to reject them. However, it is unclear that the common law can justify these rights. This review examines Strauss’s account of the common law and shows why it cannot justify our First Amendment protections of subversive advocacy, as Strauss argues it does. The review then offers an alternative account of the common law based on the “classical” common law theory associated with Coke, Hale, and Blackstone.
Number of Pages in PDF File: 42
Keywords: Living Constitution, Common Law, Common Law Constitutionalism, Jurisprudence, David Strauss, First Amendment, Subversive AdvocacyAccepted Paper Series
Date posted: March 22, 2011 ; Last revised: September 12, 2011
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