Academic journal article Boston University Law Review

Common-Law Constitutionalism, the Constitutional Common Law, and the Validity of the Individual Mandate

Academic journal article Boston University Law Review

Common-Law Constitutionalism, the Constitutional Common Law, and the Validity of the Individual Mandate

Article excerpt


Originalism's proponents (and here I refer to those "skyscraper originalists" who consider themselves bound by "original expected application"1) articulate three important virtues of their chosen interpretive method: (1) originalism provides legitimacy to judicial review that would otherwise be lacking;2 (2) originalism constrains judges' discretion in choosing among possible interpretations of the Constitution's text;3 and (3) originalism provides stability to the Constitution's meaning.4 In The Living Constitution, David Strauss's central thesis seems to be that the institution of judicial review itself - particularly the path dependency of the common-law tradition - provides all of those virtues even when judges are not bound by the Framers' understandings.5 Indeed, Professor Strauss makes the stronger claim that "common law constitutionalism" better captures the virtues of legitimacy, constraint, and stability when it is not bound to original meaning than when it is.6

In making his case, however, Professor Strauss paints too simplistic a picture of modern judicial review, eliding a second and crucially important common-law-like feature of judicially constructed constitutional rules: their frequent susceptibility to legislative override.7 Today's judiciary does not announce a constitutional rule and then enforce it dictatorially at all times and in all cases, nor does it announce a constitutional rule and then enforce it monolithically until compelled to make revisions through trial-and-error elaboration. Instead, today's judges announce broad constitutional norms and then craftspecific rules for enforcement of those norms - rules that Henry Monaghan long ago termed the "constitutional common law."8 Importantly, most of these enforcement rules either allow for legislative overrides or are themselves subject to such override.

The presence and operation of the common law is important to Professor Strauss's theory, especially to his claim that common-law constitutionalism can beat originalism at its own game - that it can better capture the virtues of legitimacy, constraint, and stability that originalists seek. The problem is that the legitimacy, constraint, and stability of common-law constitutionalism do not come from Burkean notions of tradition and precedent; they come from the constitutional common law and its openness to political suasion. But when it comes to judicial review, political suasion is a source of virtue that originalists want to reject. The disagreement between Professor Strauss and originalists, then, ought to be fought at square one: whether changing social norms and political preferences are a justifiable reason to change constitutional operations (absent a formal constitutional amendment). In my view, Professor Strauss cannot win on the originalists' turf; he ought to attack the originalists' foundational view that courts are institutionally antidemocratic and therefore ought not to do politics.

The paper proceeds as follows. Part I describes the constitutional common law and its interactions with common-law constitutionalism. Part II uses the fight over the constitutionality of the Patient Protection and Affordable Care Act (ACA) and its so-called "individual mandate" as a case study to flesh out the core differences between common-law constitutionalism and constitutional common law. Part III argues that a viable justification for a living constitution needs to embrace and defend the courts' essentially political nature, confronting head-on the (skyscraper) originalists' sense that courts should never do politics.


In The Living Constitution, Professor Strauss portrays constitutional elaboration in the courts as a cloistered, voyeuristic, and slow process: A court announces a constitutional rule in the course of deciding a case, sees how that rule works in the world beyond its doors, and then makes adjustments slowly and carefully through case-by-case elaboration and with due respect for precedent. …

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