Philosophy of Law Fall 2019

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. Here 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.

However, 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. Justice Thomas is willing to question the First Amendment cases on originalist grounds. Scalia, by contrast, seems to be willing to give past court decisions significant weight. As Caroline put it, he would have to reject court precedents in order to arrive at the conclusions he favors.

In any event, since Scalia and Strauss 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.

Berto said that we’re not really interested in the 1789 document. We’re interested in the law that we have live under. That, he said, is defined by the various court decisions that Strauss describes. Maddie and Meghna had similar opinions.

As for the second point, about fairness, Ji Min said that she was persuaded by Strauss that most of what we know about First Amendment comes from the court decisions rather than the original document. If so, then Strauss has a compelling point to make about fairness. If the point is that people should know what the law is, it’s hardly obvious that we now should rely on the way it was understood in the eighteenth century as opposed to the way it is understood now.

In my opinion, Scalia’s third point is his strongest one against Strauss. Strauss is saying that judges and lawyers play an important role in making Constitutional law. But how do they get this power in a democracy? Shouldn’t that be the exclusive power of the elected legislature?

Caroline and Ji Min said that the Constitution itself wasn’t democratically enacted. How is it especially democratic to be governed by its original meaning? Meghna replied that she thinks this is beside the point. Scalia, as she understands him, is saying that changes to the Constitution should be made by democratic means, not that it was originally adopted by democratic means.

Patrick said that he thought that it is necessary for the Court to act, as amending the Constitution and passing legislation are sometimes either impossible or take too long. While I share his opinion, I pushed back a little bit by asking whether the historical record really shows that the Court is more effective than the legislature at achieving things like voting rights. (I don’t know this answer myself. It seems to me that this would be an excellent political science project.)

Ross noted that Strauss thinks the Court can incorporate the wisdom of the ages. Because it does so, and because it is staff by people who are specially educated in this aspect of government, you might say that its anti-democratic nature is a benefit rather than a liability. Meghna thought that relying on the wisdom of the ages is dangerous. Patrick thought that the dangers are mitigated by the fact that judges share the beliefs of the society at large.

Whew. As your official note taker, I would like to stop for a moment to say that the discussion was carried out at an unusually high level and that everyone who participated should feel great about it. Now, back to your regularly scheduled notes.

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.

One point where they would probably disagree concerns the wisdom of the ages. Strauss says that the fact that a law is old, or “worked out over an extended period” is a good reason to obey it (Strauss 2010, 37). I think Dworkin would say that the age of a law has nothing to do with whether it is justified. If it’s justified, it’s primarily because of its substance. If the law makes for good policy or reflects appropriate principles, it’s a good law. If it doesn’t, it’s not.

The age of a law or legal doctrine, by contrast, doesn’t add any weight, as Dworkin sees it. Some legal doctrines are worked out over an extended period of time and are still wrong, after all. To put it another way, it’s the wisdom of the ages that counts, not the fact that the wisdom comes from the ages.

If I were Dworkin, I would say that Strauss’s argument appears to be strong because he picked an area of the law where the common law method got what we think is a good result. First Amendment doctrine works pretty well, after all. But if we were to consider another area of the law that seemed to work very badly or to have substantively mistaken decisions, the fact that this area of law had been developed over a long period of time would not give us any reason to think that it is OK.

For example, one area of First Amendment law that Strauss doesn’t mention is campaign finance. Some of his readers will think that the court has been too protective of individual political speech, expressed as campaign donations, and that it has given too little weight to the importance of preventing corruption. But that is just as much a historical development as the decisions that we like more.

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

If you’re interested in the development of the First Amendment, I would like to recommend a podcast 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.


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