The Roots of the Living Constitution

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.

Number of Pages in PDF File: 32

Keywords: living constitution, common law constitutionalism, common law adjudication, living originalism, social movements, constitutional change, constitutional interpretation

JEL Classification: K10

Accepted Paper Series