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Reason, the Common Law, and the Living Constitution

42 Pages Posted: 22 Mar 2011 Last revised: 25 Mar 2014

Matthew J. Steilen

State University of New York (SUNY) at Buffalo, Law School

Date Written: February 1, 2011

Abstract

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.

Keywords: Living Constitution, Common Law, Common Law Constitutionalism, Jurisprudence, David Strauss, First Amendment, Subversive Advocacy

Suggested Citation

Steilen, Matthew J., Reason, the Common Law, and the Living Constitution (February 1, 2011). Legal Theory, Volume 17, Issue 4. Available at SSRN: https://ssrn.com/abstract=1791751

Matthew J. Steilen (Contact Author)

State University of New York (SUNY) at Buffalo, Law School ( email )

School of Law
528 O'Brian Hall
Buffalo, NY 14260-1100
United States

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