Vicki Jackson: Constitutional Change and Living Trees (reviewing David Strauss' The Living Constitution).
UPDATE: Michael Perry writes to point out this NYT review of Strauss' book from last year, by Stanley Fish: Why Bother With the Constitution? Some of Fish's key arguments:
Why is Strauss trying to take the Constitution out of the constitutional interpretation loop? Because he wants to liberate us from it as a constraint. He repeatedly invokes Thomas Jefferson’s remark that “The earth belongs to the living and not the dead” and expands it into a question: “What possible justification can there be for allowing the dead hand of the past . . . to govern us today?”
That is like asking what justification is there for adhering to the terms of a contract or respecting the wishes of a testator or caring about what Milton meant in “Paradise Lost” or paying serious attention to the items on the grocery list your spouse gave you. In each of these instances keeping faith with the past utterances of an authoritative voice — the voice of the contracts’ makers, the voice of someone’s last will and testament, the voice of the poet-creator, the voice of the person who will make the dinner — is constitutive of the act you are performing. And not keeping faith raises the question of why we should bother with the Constitution or the contract or the will or the poem or the list at all. Why not just cut out the middleman (who is not being honored anyway) and go straight to the meanings you want?
And this from the conclusion:
The incoherence of what Strauss is urging is spectacularly displayed in a single sentence. Given the importance of common ground, “it makes sense,” he says, “to adhere to the text even while disregarding the framers’ intentions.”
I am at a loss to know what “adhere” is supposed to mean here. According to the dictionaries, “adhere” means “to stick fast to” or “to be devoted to” or “to follow closely.” But you don’t do any of these things by “disregarding” the intentions that inform and give shape to the text you claim to “honor”; you don’t follow closely what you are in the act of abandoning. Instead, you engage in a fiction of devotion designed to reassure the public that everything is on the (interpretive) up and up: “The Court could take advantage of the fact that everyone thinks the words of the Constitution should count for something.” Here “something” means “anything,” as long as it hooks up with what everyone thinks; and the advantage the Court is counseled to seize is an advantage gained by pandering. If this is what the “living Constitution” is — a Constitution produced and reproduced by serial acts of infidelity — I hereby cast a vote for the real one.
Posted at 7:30 AM