Legal Commentary

These 2 books are good at showing "the intellectual bankruptcy of originalism" but not so good at telling us what could replace it.

Keeping Faith with the Constitution [buy it!] is a typical manifesto written by law professors committed to public service and constitutional politics. It breaks no new ground theoretically. Their idea of constitutional fidelity is an old one, rediscovered in each generation.....

Constitutional fidelity appeals to those who wish to square the original Constitution with a commitment to the bien-pensant positions of the day, which can be justified as faithful to the founders? higher principles, even if not to their specific expectations....

[In The Living Constitution, which you can buy here, David Strauss] says throughout that the common-law constitution not only changes, but ?evolves? or ?adapts?; and he implies that this evolution results in improvement over time, as morally or pragmatically undesirable features of constitutional law are weeded out...

[Strauss argues that a] common-law constitution works well, or at least better than the alternatives, because it is the work of generations of epistemically humble judges making incremental improvements over time. The common-law approach to constitutionalism thus draws upon the ?accumulated wisdom? of the past, embodied in precedents....

One hopes that he will soon provide a more rigorous theoretical treatment of his common-law constitutionalism, which is to date the most promising version of living constitutionalism by far.

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Full post as published by Althouse on August 02, 2010 (boomark / email).