New book makes the case for our living Constitution and obliterates originalism

[usregimechange]

Last month, University of Chicago law professor David A. Strauss published a book he titled—defiantly—The Living Constitution, which offers a powerful defense of both the idea and the metaphor. Strauss begins by distilling the case against originalism to its bare essence and then explains how the question becomes not whether the Constitution lives, but how the Constitution lives.


http://www.amazon.com/Living-Constitution-Inalienable-Rights/dp/0195377273/ref=sr_1_1?ie=UTF8&s=books&qid=1277267671&sr=1-1
http://www.law.uchicago.edu/faculty/strauss


Scalia has said of his occasional willingness to follow judicial precedent that conflicts with unadulterated originalism, “I’m an originalist—I’m not a nut.” “That way of putting it is disarming,” Strauss writes, “but it seems fair to respond: if following a theory consistently would make you a nut, isn’t that a problem with the theory?” Strauss also skewers Scalia’s familiar declaration that he practices a “fainthearted” originalism. “(I)f you’re going to say that originalism is only sometimes the right approach, then you have to answer at least two other questions,” Strauss explains.

“What principle determines when it is right to abandon originalism?

And, once you decide not to be an originalist in a certain category of cases, what do you do instead?”

Strauss answers his rhetorical question by insisting that originalists, in the breach, adhere to a version of the living Constitution, which he defines as a document “that evolves, changes over time, and adapts to new circumstances, without being formally amended.” And originalists often find themselves in the breach because the Constitution’s most significant provisions frequently provide little textual guidance. How much process, exactly, is due under the due process clause? Strauss suggests that originalists, by transforming generalities into specifics, disrespect the very Framers they purport to valorize.

http://www.tnr.com/article/book-and-arts75628/its-alive?page=0,1&passthru=YjFiOGNmZGQ4ZmNhNDNiNjU1NzIxYWVkYzg1MWE2NGQ

[The Northerner]

1. Aren't constitutional amendments supposed to be proposed if the Constitution is to be modified?

Is that what the living document argument is about?

[usregimechange]

2. No, that is one way it is living but the other is when the framers intentionally used general phrase

s. "Equal protection." "Due process." "Unreasonable search..." They are general to allow judges some flexibility when applying to a modern context.

[elleng]

3. No.

'Living' document refers to recognizing changes that occur, over time, in nation's culture, as in, 'indecency,' 'pornography,' 'cruel and inhuman,' etc.

[nemo137]

4. I'll be intersted in reading that.

I read Breyer's book against originalism this spring, and will be interested in this as a more indepth look at what Breyer had almost as an after thought.

[usregimechange]

5. Which book did you read and would you rec?

[defendandprotect]

6. When we create legislation today, do we expect it will last forever?

the intent and spirit of legislation is what is must be judged --

and, of course, continuing to EXPAND freedom and civil rights vs limiting them!

Evidently, they also thought we needed a revolution at least every 20 years --

We have fuddy duddy stuff going on in this country because right wingers like Scalia

use "originalism" as a fence -- against progress!

[usregimechange]

7. because they see little demons crawling out of progress