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Misjudging the Constitution

The Living Constitution, David A. Strauss, Oxford, 176 pages

University of Chicago law professor David A. Strauss has written a book-length justification of wide-ranging judicial authority. The nub of his argument is that the U.S. Constitution should be treated as a mere jumping-off point for a common-law tradition. Judges should consider themselves free, as Justice Robert Jackson once put it, to make “new law for a new day.”

The common law was the entire mass of precedents established by English courts over several centuries. According to its 18th-century proponents, the common law accounted for English freedom.

The chief alternative to common law is civil law. Descended from Roman rather than English sources, civil-law systems tend to be adopted all at once by some legislative authority. Not court decisions handed down over long periods of time, but the enactments of lawgivers at particular moments form the basis of civil-law systems such as are found in today’s France, Germany, and (because its traditions descend from France) Louisiana.

Important though the common law was in British and colonial history, one would have thought that the Constitution, ratified by the original 13 states in 1787-90, was properly analogous to a civil-law code. That it is a written document and that officials are required to swear to uphold it are facts that point in that direction.

Strauss does not consider this. Rather, he says that we must not be bound by what anyone said or meant in the 18th century. We can obtain better results by substituting our preferred outcomes—or Strauss’s preferred outcomes, at any rate—for the ones our forebears had in mind in adopting the Constitution.

After all, the world has changed since the 18th century, he says, and obviously the law must change with it. Again, one might have thought that the American people in ratifying the Constitution had provided the means for such change in Article V, which provides two methods of amendment. Strauss, however, contends that Article V’s processes are simply too difficult to implement, so they must be ignored.

He concedes that critics of his idea have made headway in persuading the public that a “living constitution” is really, as he phrases it, “a collection of gauzy ideas that appeal to the judges who happen to be in power at a particular time and that they impose on the rest of us.” The aim of his book is first to persuade readers that this understanding is inaccurate, then to show them that we actually do have a living constitution—and finally to insist that this is a good thing.

In order to achieve this, Strauss must begin by attacking what in constitutional law is called “originalism,” which in any other area—contracts, wills, trusts, treaties, etc.—would simply be called “law.” “Originalism,” he says, “is a totally inadequate approach” when it comes to “difficult, controversial constitutional issues.” The living constitution has been substituted for the one the people ratified by necessity, it seems, and “The amendment process is, perhaps surprisingly, nearly irrelevant.”

The first chapter is entitled “Originalism and Its Sins,” and here, over 25 of his book’s 135 pages, Strauss endeavors to show why constitutional matters are unlike other areas of law. After all, in probate law, the judge asks what the will of the testator was. In contract law, the parties must have had a meeting of the minds. And so on. Even though Americans were sold the U.S. Constitution on the basis of promises that it would be read in precisely the same way—that is, as its ratifiers understood it—Strauss will have none of this.

Yet he does not argue fairly. Rather than responding to a real-life version of originalism—say, Thomas Jefferson’s statement that the Constitution must be read “according to the true sense in which it was adopted by the states, that in which it was advocated by its friends”—Strauss asserts that constitutional disputes “cannot be settled just by reading the words of the Constitution.” He knows perfectly well that originalism in the classic sense is not about just reading the words. He knows, for example, that the Ex Post Facto Clause is read by originalists as applying only to criminal law because that is how the phrase was understood at the time. Why create a straw man, then?

Strauss asks whose understanding is supposed to be sought by an originalist: the authors’, the ratifiers’, or the culture’s? Yet this is not a serious argument, any more than it would be serious to say we must have judicially reinterpreted wills in probate court because originalism there would require us to decide whether it was the dead person’s lawyer’s intent that counted, or the dead person’s, or the general culture’s.

Having satisfied himself, if no one else, with the cleverness of these and other practical objections, Strauss then plays the anti-originalist’s trump card: he lists famous constitutional rulings and political practices that developed from them that originalism would not have produced in precisely the same way. Among these are Brown v. Board of Education, the federal courts’ ban on some laws discriminating between the sexes, the application of federal judges’ favorite Bill of Rights ideas against the states through the so-called Incorporation Doctrine, the federal courts’ decisions banning state legislatures from being apportioned as Congress is, and the creation of the gigantic bureaucratic state that came to be housed in Washington, D.C. in the 20th century.

This is the argument that apologists for judicial legislation always make: look at the good things that unconstitutional “constitutional” law has given us. We all agree that these things are wonderful, yet originalists want to undo them. This argument is subject to several objections.

Consider the Brown decision. Had the federal government enforced the 15th Amendment as originally understood, the caste system under which the South groaned in 1954 could not have endured. Only the fact that blacks—a majority in South Carolina, about half the population of Mississippi and Louisiana, and large shares of the populations of other Southern states—could not vote enabled the Democratic Party to reduce them to second-class citizenship.

We know this because it was not Brown that ended segregation, but the Voting Rights Act of 1965. As of early 1965, virtually no black students were in schools with whites in the Deep South. But once blacks began voting in large numbers, George Wallace was asking for their votes and Strom Thurmond was sponsoring a Martin Luther King holiday. In other words, it did not take facetious readings of the 14th Amendment to end segregation. What it took was enforcement—originalism—in regard to the 15th.

Strauss’s argument assumes that none of the elements of constitutional law that he defends against originalism would have come to be without judges legislating from the bench. Yet recall his observation that formal amendments are not that important. The reason Article V has rarely been used is that judges amend the Constitution instead. Judicial fiat has crowded out popular government. So, for example, one supposes that something like the Equal Rights Amendment might have passed if judges had not already imposed much of its substance on the country. In the absence of any such act by the people, however, it is simply a violation of the judges’ oath of office for them to announce, say, that Oklahoma may not have a higher drinking age for men than for women or Virginia may not have an all-male military academy.

The balance of Strauss’s book takes the uninitiated through the common-law method. Strauss’s intention is to calm the nerves of Americans suspicious of unchecked power. For appointed, unaccountable judges to exercise broad policy-making authority is not so frightening, he insists, because the common-law approach includes an ethic of judicial restraint and several informal boundaries to judges’ behavior. Strauss does not notice that similar arguments were once made in defense of the hereditary principle. The point of the Constitution is very much that informal checks and self-restraint are not enough.

Strauss’s inversion of America’s constitutional tradition doesn’t stop there. He goes so far as to try to enlist the ghost of Thomas Jefferson into battle on his side. Jefferson, Strauss points out, insisted that the earth belongs to the living. Yes, Jefferson said that. His intention was not, however, to vindicate placing greater authority in unelected judges but to prepare people to use their votes to change their inherited institutions. In other words, Jefferson’s argument was opposite Strauss’s. And Jefferson made the argument against judicial legislation—and against a federal common law—over more than two decades, persistently and consistently, with growing vehemence.

The idea of the living constitution is bad enough by itself, but Strauss has shown us that it leads to even greater perversions of truth—to a “living” American history that bears as little resemblance to what the founders of this republic said and did as recent Supreme Court jurisprudence bears to what they thought and meant.

Kevin R.C. Gutzman is the author of James Madison and the Making of America.



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