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REASON, THE COMMON LAW, AND THE LIVING CONSTITUTION

  • Matthew Steilen (a1)
  • DOI: http://dx.doi.org/10.1017/S1352325211000164
  • Published online: 11 November 2011
Abstract

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 commonsense judgments about what works and what is fair. In defending this claim, Strauss argues that central constitutional prohibitions of discrimination and protections of free speech have a common-law basis and that the originalist should consequently reject them. The review disputes this contention. It examines Strauss's account of the common law and argues that it cannot support our First Amendment protections of subversive advocacy, as Strauss says it does. The review then offers an alternative account of the common law based on the “classical” common-law theory associated with Coke and Hale. The latter account does support our protections of subversive advocacy but is much less appealing to those distrustful of ambitious and large-scale judicial action.

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This list contains references from the content that can be linked to their source. For a full set of references and notes please see the PDF or HTML where available.

David A. Strauss , Common Law, Common Ground, and Jefferson's Principle, 112 Yale L.J. 1717 (2003)

David A. Strauss , Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877 (1996)

Fred Schauer , Is the Common Law Law?, 77 Cal. L. Rev. 455, 455–456 (1989)

Tom Grey , Do We Have an Unwritten Constitution?, 27 Stan. L. Rev. 703, 710–714 (1974)

Frederick Schauer , The Jurisprudence of Reasons, 85 Mich. L. Rev. 847, 850–860 (1987)

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Legal Theory
  • ISSN: 1352-3252
  • EISSN: 1469-8048
  • URL: /core/journals/legal-theory
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