At Notre Dame Philosophical Reviews, Craig Duncan (Ithaca College, Philosophy & Religion) reviews David A. Strauss, The Living Constitution. (Thanks to Michael Perry for the pointer).
After a tour through Strauss’ criticisms of originalism and his case for common law constitutionalism, Professor Duncan offers an alternative theory:
[C]onsider a distinction Strauss draws between "rigorous" and "moderate" originalism. Rigorous originalism is the doctrine according to which "the original understandings of constitutional provisions provide answers to every dispute about what the Constitution requires" (p. 25). By contrast, according to moderate originalism, "what is binding is not the original understandings, but instead the principles that the framers or ratifiers of the Constitution were understood to be establishing" (pp. 25-26). Thus, for example, we are to take the First Amendment as enshrining the moral principle of free speech into our country's fundamental law, but judges need not be bound by the eighteenth century understanding of that principle. Strauss criticizes moderate originalism as falling prey to exactly the manipulability complaint that originalists make against living constitutionalism, writing that "Once we say that we are bound only by the principle, rather than by the specific outcomes that the founders envisioned, we can always make the principle abstract enough to justify any result we want to reach" (p. 27).
What, though, if we added to moderate originalism the proviso that the interpretation of the principles in question is to proceed along common law lines, with its respect for precedent? On this understanding, judges are not free simply to write into law their own personal understanding of the principle in question (free speech, say), but must respect the understanding relied upon in earlier court decisions. With this proviso, moderate originalism strikes me as an interesting theory. However, we must ask whether it is a genuine alternative. For would not the addition of this proviso convert moderate originalism into essentially Strauss's own theory of living constitutionalism?
Arguably, no. The difference is apparent in a five page discussion of Roe v. Wade (1973), in which Strauss discusses the Supreme Court's defense of a limited right to abortion rooted in the Due Process Clause of the Fourteenth Amendment. Although Strauss notes some misgivings he has regarding Roe, its invocation of the Due Process Clause is not one of these misgivings. The clause, Strauss observes, has long been used to confer liberty rights. Endorsing this practice, Strauss argues that "two well-established legal traditions" — namely, a right to bodily integrity and a right to family autonomy — can be used to construct a limited right to abortion, and "under a common law approach, the long-standing nature of these traditions supports the legitimacy of establishing a constitutional right" (pp. 94-95).
The modified "moderate originalism" defined two paragraphs ago would take a different view. After all, the text of the Due Process Clause makes no mention of bodily integrity and family autonomy; instead, on the most straightforward reading it refers not to a substantive principle of liberty at all, but simply to a principle of due legal procedure. Hence, important though the values of bodily integrity and family autonomy are, this modified moderate originalism — rejecting as it does any notion of unenumerated rights — would not regard these values as constitutionally protected by the Due Process Clause. Thus, while the modified theory under consideration would generate a kind of "living constitutionalism" (insofar as it allows constitutional understandings to evolve over time via common law interpretations of enumerated rights and principles), it regards the text as more of a constraint than does Strauss's own living constitutionalism. Perhaps we might call this theory "living textualism."
Posted at 7:00 AM