Philosophy of Law Spring 2018

The Living Constitution


Strauss makes the case for a common law approach to interpreting the Constitution. This treats the decisions of judges as an important source of the law. As judges interpret the Constitution in the light of their predecessor’s interpretations, they will develop new doctrines that, in turn, will become part of the law. That is why he describes his view as a defense of the living Constitution.

As an illustration of how this works, Strauss gives us a history of the development of the law surrounding the First Amendment to the Constitution. This is each and every word of the First Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Strauss identifies what he claims are three basic principles that courts use to interpret the First Amendment and he argues that it is impossible to derive those principles from the original meaning of the Amendment (Strauss 2010, 53–55). Where does he think those principles come from? Court decisions in the twentieth century. Those three principles are now part of the Constitutional law even though they were not part of the original meaning of the Constitution.

Strauss vs. Scalia

On the face of it, Scalia and Strauss should be completely at odds. Strauss defends the idea of a living Constitution while Scalia famously said he prefers the dead one. Accordingly, Strauss takes originalism to be the primary alternative to his common law method of interpreting the Constitution.

But as Molly pointed out to me a couple days ago, if Scalia is going to accept the validity of past Court decisions, that is, precedents, then they might be a lot closer to one another than they seem to be. If, for example, when faced with a First Amendment case, did Scalia insist on the original meaning alone or did he view the precedents established by past court decisions as valid parts of the law? If it was the latter, then it’s not easy to see what the difference would be. I’m quite curious about this aspect of Scalia’s views; if anyone knows about this, please fill me in.

In any event, since the two authors think they disagree with one another, maybe we should take them at their word and see how it goes.

Scalia gave us three basic reasons for favoring originalism over the living Constitution.

  1. The only sensible way of interpreting an old document is to look at what its words meant to people at the time it was written.

  2. Fairness requires that people know what the laws mean: you can’t expect someone to obey a law whose meaning is determined by something private like the legislator’s intent.

  3. Originalism is more democratic than the living Constitution. If judges stick to it, then changes in the law have to come from the elected branches rather than judges.

I said that I found a subtle difference between Strauss and Scalia that is relevant to the first point. Scalia is interpreting the Constitution while Strauss is interpreting Constitutional law. Since Constitutional law, according to Strauss, has continued to develop long after 1789, we cannot interpret it solely using the thinking prevalent in 1789.

I said that I thought Strauss was coming out ahead on the second point. He makes a compelling case that the law that people actually follow is the one that developed recently through court decisions.

And I said that I thought Strauss did not have much to say about Scalia’s final point. But, as our discussion revealed, you would only say that he is coming out behind if you put a lot of value on democratic decision procedures. If you are comfortable with judges making law even though they are not accountable to the public, then this is not necessarily a bad thing.

Ryan made a point that is worth repeating here. Strauss had said that the common law approach is a good one because it means that the law reflects the wisdom of the ages. As he puts it, “Legal rules that have been worked out over an extended period can claim obedience for that reason alone” (Strauss 2010, 38). That may be enough to show that law made by judges is legitimate. But it does not explain why judges should be the ones to develop legal rules over an extended period. The elected legislature can do the same thing, of course. Again, if you’re committed to democracy, on the face of it, that would be your preferred way of making even the evolutionary law that Strauss celebrates.

Strauss vs. Dworkin

Since Dworkin claims that his moral reading of the Constitution reflects its original meaning, Strauss and Dworkin appear to be at odds. In practice, it’s not so clear how far apart they are as they both think that the correct interpretation of the Constitution can diverge pretty significantly from how it was originally understood.

I think that one point on which they might disagree would concern their attitudes towards cases from the past. Could Strauss say that the free speech cases decided during World War I were wrong and that they violated the rights of the defendants whose speech was punished? I don’t think so. The law not evolved at that time and so it did not yet include the principle giving priority to protecting speech critical of the government.

If I were Dworkin, I would say that this exposes a flaw in Strauss’s method. I would say that we now are a lot closer to understanding the true meaning of the First Amendment than they were during World War I. That is why the interpretation of the law changed: our interpretations are closer to the truth than theirs were. So, I would say, the past decisions were wrong and the state violated the First Amendment rights of the people who were punished for opposing the war.

Another thing I would do if I were Dworkin would be to accuse Strauss of cherry-picking an example that works best for his theory. The parts of First Amendment law that he describes do indeed work well. But what about the decisions reached through common law methods that do not work well? The Court has made it very hard to regulate political corruption with its holdings that financial contributions to politicians count as political speech. Do those parts of First Amendment law work?

The general point is that when we evaluate the common law system, we’re looking at the results and seeing if the decisions seem right to us. We aren’t saying that they must be right because they were worked out over time, period. If I were Dworkin, I would say that shows that we are really using the moral reading of the Constitution and not the common law method.

Main points

These are the things that you should be familiar with or have an opinion about after today’s class.

  1. What the common law approach is and why it yields a living Constitution.
  2. How Strauss uses the First Amendment to support his theory.
  3. How Strauss and Scalia differ.
  4. How Strauss and Dworkin differ.

First Amendment Podcast

I have been listening to a podcast on First Amendment law called Make No Law. It’s very well done and I have learned quite a lot from listening to it. It’s a rare case of something that is enjoyable and good for you at the same time.

In particular, the episode on Garcetti v. Ceballos addresses Sophia’s question about the speech rights of government employees.


Strauss, David A. 2010. The Living Constitution. Oxford: Oxford University Press.