Academic journal article Boston University Law Review

In Medias Res

Academic journal article Boston University Law Review

In Medias Res

Article excerpt

It's common in academic circles to distinguish between positive arguments (which describe things as they are) and normative arguments (which prescribe the way things ought to be). The distinction dissolves as soon as accounts of how the world works spill over into justifications for the status quo. That happens a lot, especially in discussions of theory. It happens again in David Strauss' wonderful monograph.1 Strauss offers a succinct exposition of the constitutional system we actually observe, coupled with a powerful explanation of how and why the scheme functions as it does and genuine reassurance that, on the whole, we can and should be satisfied.

I am convinced Strauss has all this about right. In the main, I come to praise him. I will make this clear in Part I. We have a living Constitution. We make it up as we go along, according to a frame of reference that both enables and curbs our appetite for change and, into the bargain, holds us together as a people. I do have reservations about some aspects of his case, though, and I will sketch them in Part II. I also wonder what implications Strauss' theory may have for a purely normative question he doesn't address - namely, how an original document should be drafted for the purpose of fostering a living Constitution over time. I offer some thoughts along those lines in Part III.

I

Legal theorists can't muddle along like real people, operating within the constitutional system, never pausing to reflect on the whole of which they and their actions are a part. Theorists are supposed to explain stuff. They are supposed to connect the dots, or at least to try. Professor Strauss carries this burden as well as anyone writing in the field today. He imposes no deep philosophical concepts on the Constitution; he reads no contested political values into it. Instead, he offers a down-to-earth, objective, and above all wise appraisal of what we are doing and where we may be going. His analysis entails all the judgment, humility, and caution he associates with the common law method on which, in his view, we rely for the living Constitution.

The first hundred pages of this book are a tour de force. Strauss initially identifies the challenges the Constitution poses for the evolving American society. He next demolishes the appeal of originalism as a plausible account of our national experience - originalism, at least, in any of its familiar forms. He then introduces common law methodology as a theoretical explanation that better fits the facts. His treatment is sophisticated, yet free of legal jargon (and distracting citations) that can discourage even serious readers. To make his case even more accessible to a general audience, Strauss illustrates the common law method at work in two celebrated contexts - the Supreme Court's incremental development of now-settled principles touching free speech and racial equality. This is a masterful academic achievement. I would not have dreamed that so much crucial ground could be covered so economically without sacrificing accuracy.

II

Persuaded as I am by Professor Strauss' primary argument that we have a living, common law Constitution, I have some (modest) concerns about his additional arguments in chapter 5. There, he contends that the historical, documentary Constitution is "as important as the living Constitution of precedents and traditions."2

I must say I'm not sure how this can be so, given that common law methodology does the heavy lifting. Strauss plainly doesn't credit any notion that the written Constitution is entitled to respect because of its origins. With Jefferson, he dismisses any claim that we are bound to follow decisions made by somebody else a long time ago - because they were smarter than we are or because they asserted an authority to rule us centuries later. Certainly, Strauss rejects the idea that the document enjoys democratic bona fides. Even if the 1789 document was adopted democratically (it wasn't, of course, but even if it was), we would not be obliged to give it priority over a statute our own generation sees fit to enact. …

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