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.
This article has been published in a revised form in Legal Theory, https://doi.org/10.1017/S1352325211000164. This version is free to view and download for private research and study only. Not for re-distribution, re-sale or use in derivative works. © Cambridge University Press 2011.
Reason, the Common Law, and the Living Constitution (review of The Living Constitution by David Strauss),
Available at: https://digitalcommons.law.buffalo.edu/book_reviews/59