Legal Commentary

Adrian Vermeule has this review, in The New Republic, of two new books on constitutional interpretation:  David Strauss's "The Living Constitution" and "Keeping Faith with the Constitution," by Pam Karlan, Chris Schroeder, and Goodwin Liu.  From the first paragraph:

 Two new books lay out two different accounts of living constitutionalism: ?constitutional fidelity? in the first book, ?common-law constitutionalism? in the second. These living constitutionalisms have a common enemy?originalism, roughly the idea that the Constitution should be read according to the public meaning the founding generation understood it to have. But once that enemy is slain, the two versions of living constitutionalism face new challenges. In the case of constitutional fidelity the challenges are insuperable, while for common-law constitutionalism they are merely daunting. . .

Later, Adrian writes:

The first questions for any theory of constitutional judging are whether and why the judges should have the power to overturn, in the Constitution?s name, what other officials have decided. If originalism and constitutional fidelity are equally unbounded or plastic, and if neither can show that what the judges do systematically improves upon what legislatures do, however improvement is defined, then the natural reaction is to leave the enforcement of constitutional principles to the legislature itself, at least where reasonable people can disagree about what those principles require. Doing so would curtail the judges? power of constitutional review, which for all we know adds nothing except delay, and which may even do some harm. Few legal academics are comfortable with such a conclusion, hence the eternal quest of constitutional theorists for some account that will justify the judges? power. . . .

Read the whole thing!