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.
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. In class, I said that Justice Thomas might well be the more pure originalist. Within hours, Zach sent me an article from the New York Times that pretty much says that: Thomas is willing to dispense with the First Amendment decisions that Strauss thinks are central because they don’t reflect the original meaning of the Constitution.
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.
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.
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.
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.
Hutch beat me to the punch on the second point, about fairness. Strauss makes a compelling case that the law that people actually follow is the one that developed recently through court decisions. 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.
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 who elected them? While I take points raised by Dan and others to the effect that judges’ decisions aren’t that undemocratic, I think they are still going to be less democratic than those of an elected body. So I think that Strauss should just own up to it and say that democracy isn’t always the best thing. Why shouldn’t we use experts on the law to shape the law?
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 case is strong because he picked a case 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.
These are the things that you should be familiar with or have an opinion about after today’s class.
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.