★★★★★ 5
An Excellent Introduction to Legal and Constitutional Reasoning
Format: Hardcover
This is an excellent introductory volume for people who feel confused by the debate over "original intent" versus a "living Constitution." David A. Strauss is a law professor at the University of Chicago. His book is a quick read (139 pages), with no notes, bibliography or other impedimenta - just an index. It's a very lucid explanation of legal reasoning and how the Supreme Court has followed this basic process over time. Hence the "living constitution" is really just an instance of the English common law tradition functioning normally. This book will teach many Americans how legal reasoning actually operates in practice. It is a common-sensical and conservative process that seeks at once to promote predictability and fairness. By and large, it has worked well.
The phrase "living Constitution" has been denigrated by people who seek to turn back the calendar to a day when more "traditional" values were imposed by law. In so doing, they have invoked an historical fiction, the "original intent" of the framers of the Constitution. The myriad problems arising from this effort, if not its disingenuousness, have been discussed with insight and erudition by such excellent minds as Jack Rakove ("Original Meanings")and Akhil Reed Amar ("The Bill of Rights," and "The American Constitution: A Biography"), to name just two.
The real point of this book, I think, is to explain basic legal reasoning to a mass audience. This does a great service. It also shows how naturally the common law evolves, how it tends to restrain judicial activism and yet to permit flexibility as times and circumstances change. As Dean Roscoe Pound of the Harvard Law School put it in his book, "The Spirit of the Common Law," the common law is "essentially a mode of judicial and juristic thinking, a mode of treating legal problems rather than a fixed body of definite rules...." This is a critical distinction. Some so-called conservatives insist that judges must simply apply the law like automatons, as if it were a "fixed body of definite rules." They then seek to enlist the founding fathers in declaring what those rules are, or how definite they must be. But as Dean Pound and centuries of legal history demonstrate, this notion is far removed from the truth, and remote from any useful notion of adjudication. All Anglophone law schools, lawyers and judges are engaged in the process Dean Pound discusses.
The common law tradition arose in England over the course of centuries. We imported it to this country in part because it was workable and practical, and because it was brilliantly and systematically expounded by Chief Justice Edward Coke in the 17th century and by Lord William Blackstone shortly before the American Revolution. No one would suggest that the common law tradition means the law is the captive of judges' subjective whims. Such an assertion would have sounded ludicrous to the English as well as to the founders. But as Strauss - and volumes of legal history - unsurprisingly demonstrate, the common law tradition is the key to constitutional interpretation.
The common law is an inherently conservative instrument. It evolves incrementally. Those who complain about the "living Constitution" argue that judges merely rule according to their subjective prejudices. They contend that it is the legislative branch that should be charged with interpreting the Constitution. Of course, all three branches of government must interpret the Constitution from time to time. But the legislative branch should not have the last word in determining whether its own enactments meet constitutional scrutiny: To borrow from Chief Justice Coke, no one (including the legislature) may be the judge of his own cause. The function of determining whether legislation conforms to the Constitution has been and still is wisely confided to the courts, which by virtue of centuries of practice (as reflected in published opinions) have substantial expertise in the area and are independent. One also hears complaints that judges are insulated from reality. But courts are not insulated - they are independent. And they are independent precisely so they are not subject to being influenced by lobbyists or terrified by a challenger in a primary election.
To show how the common law works, Strauss discusses the evolution of constitutional thought in relation to two major issues: freedom of speech and segregation in public schools. He explains how the "clear and present danger" test in freedom of speech cases evolved, implicating not just such considerations as the threat of imminent harm, but also that some kinds of speech have lower societal value (libel, obscenity, fighting words), while other kinds of speech have more societal value (great literature, political speech).
Strauss goes on to discuss how Brown v. Board of Education (1954) was far less a radical overturning of an entrenched precedent, Plessy v. Ferguson (1896), than a logical step in the development of the law. In so doing, he uses an example from the law of torts, where customers injured by dangerous products originally were barred from suing the manufacturer unless they had a contractual relationship with it. At first, the fact that a product was inherently dangerous overcame the requirement of a contractual relationship. As it became harder to draw a line between ordinary products and those that were inherently dangerous, however, the old requirement of a contractual relationship was found to have outworn its purpose and customers were permitted to sue the manufacturer who had created a foreseeable risk of harm. Thus, in products liability cases, as in racial equality cases, the law evolved to meet the new demands posed by changed circumstances. Strauss shows the development of the law by discussing cases on racial equality decided after Plessy that gradually undercut the Plessy decision until it was no longer tenable.
Strauss does what law professors do every day: teach the law by showing how it evolved. His explanation, however, is so concise and clear that it makes the discussion seem not just sensible but compelling. Thus we see that the law works.
As Strauss points out, we never wrangle over some constitutional issues because they are cut and dried (you have to be 30 years old to be a senator) or because certainty is required (January 20 is the day the new president takes office, no matter how unstable the current domestic or world situation). Other provisions require more effort to interpret, but this is because the founders brilliantly provided that some matters could be spelled out specifically in advance, while others would have to be expressed in more general terms, which could be adjusted to changing needs and times (e.g., the "necessary and proper" clause in Article I, Sec. 8).
Interestingly, Strauss does not consider amendments to the Constitution to be part of what makes it a living document, since the amendment process is so onerous, slow, and seldom used. He points out how some amendments merely ratified the status quo, or served to clean up outliers, resolved technical issues, or were ahead of their time. As he offers these judgments, which seem balanced and reasonable, he also explains some of the less familiar amendments in a way that will have readers raising their eyebrows and saying "Oh, so that's where that came from."
At the outset of the book, Strauss sets out three objections to originalism:
That it is often, as a practical matter, impossible even for professional historians to discover what the intentions were of various founders with respect to matters discussed in the Constitution.
That even if an intent of the founders could be discovered, it would pertain to the understanding they had about their world: how does one go about trying to fit that understanding to our world?
That as Thomas Jefferson pointed out, one generation is to another as one sovereign nation is to another. The world belongs to the living. The notions of people long dead cannot bind us in the present or future.
Strauss correctly observes that the third of these objections is by itself fatal to originalism.
The founders were not so impressed with themselves that they felt their "intentions" should be forever imposed on posterity. Had they been dedicated to such a dubious project, they would surely have done a better job of documenting their debates and compromises during the Philadelphia convention. But little remains of those deliberations aside from the notes kept by James Madison. The Constitution, moreover, reflects their understanding that the future could not be shackled forever to the time in which they lived. They realized that the slave trade, for example, would prove intolerable and therefore provided that it could be abolished by at least 1808. So was their "original intent" to permit the slave trade, or was it that the slave trade should be abolished? And what does this say, if anything, about their intentions toward the institution of slavery - a word that did not even appear in the Constitution until the Thirteenth Amendment was adopted in 1865?
Most damning of all to the originalist position is what Thomas Jefferson said on the subject.
In a letter dated July 12, 1816, to Samuel Kercheval, Jefferson wrote
"Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors."
He added, "Let us follow no such examples nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs." He even called for revision of the constitution at stated periods.
While originalists would love to claim Jefferson as one of their own, his words - and indeed his whole life - prove that he was completely at odds with their approach.
Men like Jefferson and Franklin, who were devotees of science, were fascinated by the progress men could make in trying to understand and improve their lives. Jefferson was an eager student of nature and did considerable experimentation with crops on his plantation. He famously wrote his "Notes on the State of Virginia" to refute the widely read claims of the French naturalist Buffon about the supposedly weak, degenerate, and insipid life forms to be found in the New World. The idea that such men, who were committed to the growth of knowledge, would seek to confine all future generations to the limited understanding they possessed of the universe in 1787, is worse than laughable. It can only be explained by the polemical purposes of those whose arguments for a regressive social order are so feeble that they have to seek refuge behind an imaginary "original intent" that they erect - as if the founders wanted their limited knowledge and often unarticulated, conflicting, or ambivalent intentions to restrict the great national experiment forever.
Given the explicit language of Thomas Jefferson, quoted above, it is apparent that "originalism" actually belies and defies the express intent of Jefferson, one of the most eminent of the founders. It seems paradoxical but it was his original intent that his original intent should not govern future generations!
Original intent also appears anomalously restrictive when one considers that the founders never contemplated the existence of an Air Force, though they expressly provided for the Army and the Navy. And ask an originalist what the original intent was with respect to the Second Amendment's use of the term "arms." The founders had no concept of assault rifles or machine guns, let alone nerve gas, laser-guided bombs, predator drones, or nuclear weapons. How do we impose an intention on them to assert what they could not have foreseen, namely, that ordinary householders in the 21st century should have a personal, constitutional right to be able to obliterate a small army in a matter of seconds, based on the founders' notions about the 18th century saber, musket or pistol? Likewise, the Eleventh Amendment says nothing to prohibit a person from suing her own state - just other states. Yet even "textualists" read an unwritten provision into the Eleventh Amendment because it suits their view of how "sovereign" the states should be. When given this kind of a taste of their own medicine, originalists collapse in helpless sputtering and exasperation.
Exposed to Strauss' very sensible discussion, the concerns of originalists reflect opportunism and disingenuousness. After all, we should not expect lawyers and judges to become armchair historians, especially under the time pressures of litigation and in the face of hotly contested issues. We should not pretend the founders had some monolithic intent, least of all with respect to matters of which they had no concept. And as Jefferson pointed out, the relationship of one generation to another is like that of one sovereign nation to another: we cannot expect to bind future generations by the intentions of people who are long since dead.
In short, there will always be those who resist change and those who welcome it. If you really want to see "judicial activism" at work, you will not find much of it in the common law tradition. A far better example is the recent decision - by the so-called conservatives on the Supreme Court - in Citizens United v. Federal Election Commission.
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Reviewed in the United States on May 18, 2010
