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

David Strauss has written an elegant and compelling book, the distillation of his work on constitutional interpretation over the last decade or more.   His argument is at once positive and normative. Strauss argues that most U.S. constitutional interpretation – and some of the most important and foundational of the Supreme Court’s constitutional decisions – can only be understood as a form of common law adjudication, developed over time based on practice and precedent far more than on constitutional text.  As a normative matter, Strauss argues that living constitutionalism, developed and constrained through the methods of common law adjudication, is a superior approach to interpreting the Constitution than is originalism.   Those not familiar with Strauss’ work should read the book; those who are will still enjoy the concision and insight with which his prior articles have been distilled.

The first two chapters include his attack on originalism and his defense of the virtues of common law constitutional adjudication.  The attack on originalism synthesizes critiques of the impossibility, and undesirability, of the kind of “constraint” imposed by originalism’s commitment to interpreting in light of specific original understandings, including the difficulty of reconstruction, the challenges of “translation” and the democratic challenge of giving controlling force to the original understandings of an instrument intended for present governance. Moderate originalism, he argues, in its appeal to general principles diminishes the key feature of constraint that originalism’s proponents emphasize.

For Strauss, “common law” approaches to constitutional interpretation is the best alternative to originalism—it represents the dominant mode of interpretation and has several virtues as an interpretive approach. On the positive claim, Strauss is clearly correct in drawing attention to the importance of common law analysis of judicial precedents in resolving U.S. constitutional cases; a comparative lens further supports this conclusion. (See my piece with Jamal Greene in the Ginsburg-Dixon collection.)

Strauss’ normative arguments begin from a jurisprudential view of law’s authority deriving, not from a positive command, but from its “evolutionary origin and its general acceptability to successive generations.” (37-38).  Its benefits include an epistemological humility, drawing from the wisdom of the past while permitting change, and a pragmatic concern with workability, an ability to adjust as experience warrants.  These benefits of the evolutionary common law approach bear a certain relationship to a conception of “law as enquiry,” see  H. Patrick Glenn, Persuasive Authority, 32 McGill L J  261, 288 (1987), an approach that is arguably more candid (44-45) and thus more accountable within both juridical and lay communities.

Strauss’ conception of the common law is one that places at least as much weight on its dynamic capacity for change as on its stability over time; it is no answer to an objection to a rule of law that it has always been done thus; some more encrusted versions of the common law might disagree.  Contrary to its critics, Strauss argues, common law constitutional adjudication is not unconstrained. A core analogy he draws is to the early 20th century development of tort claims against manufacturers of mass products. Commenting on a case involving a claim for injuries caused by a defective car, Strauss shows how the privity requirement was subjected to very narrow exceptions, which then grew, and ultimately came to be abandoned, and how the courts then had to decide on the standard for manufacturer liability. (39-40).  Instead of seeing this as an unconstrained choice, Strauss argues that the precedents in fact foreclosed a wide range of options. (39).

Strauss illustrate the pervasiveness, and benefits, of common law approaches to constitutional decision making in two major areas, First Amendment and equality law.  His account shows the marked changes, for example, from Schenk v. United States (1919) to Brandenberg v. Ohio (1969).  Strauss reminds readers that original understandings, or strong strands among them, would have permitted laws prohibiting blasphemy, or civil actions for defamation without special defenses for comments on public officials, and might even have permitted prosecutions (but not injunctions) for speech critical of the government. Modern First Amendment law, which rejects all of these possibilities, arose in the 20th century, spurred by arguments made by Holmes and Brandeis about the purpose of free speech in democracy, and reinforced by abatement of the period of panic and fear about dissident speech characteristic of the World War I period. (62-73).

In his chapter on equality law, Strauss argues that, just as the common law eventually rejected the distinction between inherently dangerous items and items in ordinary use (which had been important to defining exceptions to the privity requirement) as no longer workable, as changing society created a situation in which goods were often both dangerous and common,  prior to Brown the workability of the “separate but equal” idea had been systematically placed in doubt by prior decisions finding fault with various separate but equal approaches. The course of decisions, nominally operating under the Plessy regime, had revealed flaws in its premises, or its unworkability.  So that the ground had been prepared by the common law method for the decision in Brown.

The final element in Strauss’ analysis is the diminished role of constitutional text. Amendments, Strauss argues, are seldom of the same importance as interpretation in our constitutional evolution; indeed, amendments often simply ratify changes that have already occurred or, if not sustained by popular support, are largely evaded.  Yet the text does play a role, as “common ground,” defining with specificity some rules where clarity is important (such as when elections occur) and even, with respect to larger issues, by providing a framework for debate (e.g., what does “equal protection” mean).

The book implicitly raises a number of questions; I note only a few here. First, how to determine what, if anything, is settled. Strauss claims that affirmative action has shown over time its workability, and implies that it has become generally accepted.  (41-42).  Yet the Court upheld an individually tailored affirmative action scheme by only a narrow (and highly contested) 5-4 vote in Grutter v. Bollinger (2003); is it really so well accepted? More generally, determining degrees of settlement under Strauss’ account is difficult: he suggests that Roe v. Wade is a less settled point than is Brown (96-97), but it is unclear whether he sees Roe as more or less settled than the constitutionality of affirmative action. On his account, it would seem, a case that may seem foundational at any given time may become less so as society evolves.

Second, although in the context of U.S. debates over originalism it makes sense to look at the “living constitution” as “one that evolves, changes over time, and adapts to new circumstances, without being formally amended”  (p. 1), from a broader perspective, one might think of a “living constitution” as one that evolves and changes over time, both through changed interpretations and practices, and through formal amendments.  That is, one may establish the legitimacy of other sources of change without insisting on the unimportance of constitutional amendment. Strauss uses the failed history of the ERA to illustrate his claim that amendments are not important for constitutional development.  After all, even though the ERA was not ratified, the Court extended fairly rigorous review of gender based classification.  True, it has, but in the last ten years explicit gender classifications in citizenship laws have been upheld by the Court’s actions, based on a more relaxed form of intermediate scrutiny.  See Nguyen v. INS (2001); Flores-Villar v. INS (2011) (affirming, by an equally divided court, a lower court judgment upholding a gender discrimination in citizenship laws, relying on Nguyen).  The Court was closely divided on the application of intermediate scrutiny; had the ERA been passed it might well have been taken to crystallize a firmer dedication to the abolition of gender as a legitimate legal classification.

The very process of adopting an amendment may help create the kind of overwhelming national consensus on which judicial enforcement over the long run may rest.  Thus, as Strauss explains, by the time amendments are ratified they are confirmatory of change that has already occurred.  (116).  All this seems true; but is it possible that the very process of seeking amendment may help galvanize national, as opposed to state by state, efforts at change?  Even if so, this would not show that it was the amendment itself that caused the change; but how civil society organizes to promote change, in light of the procedures of Article V and any channeling effects on political organization they have, may be an important factor.

Third, are amendments really different from “precedents” in their constraining force? That amendments without lasting social support are undermined or evaded may not distinguish them from other sources of legal change, including judicial decisions and statutes.  The Court’s school prayer decisions have reportedly been subject to repeated resistance; Brown plainly was for a period; and the Court’s criminal procedure rules on searches and interrogations have been widely evaded as well.  (On structural issues, consider the evasion of the ruling in INS v. Chadha (1983); see Louis Fisher, The Legislative Veto: Invalidated, it Survives, 56 Law & Contemp. Probs. 273 (1993)).  True, to the extent an amendment is recognized as having a core content, stare decisis is not available to allow judicial overruling;  this may or may not be an advantage of amendments—for Strauss, it is a disadvantage, but for proponents of whatever change is represented by  a new amendment it would be an advantage.

Relatedly, to the extent that precedents are experienced as constraining one might ask further whether it is the precedents that are doing the constraining or rather the sense, by lawyers and judges operating in the U.S. legal community—of the reasonable, the possible?  Of course, if this sense of what is reasonable, or plausible, is itself constructed by existing legal materials  as well as by events—in politics, in society—external to the law, it becomes quite complex to differentiate the constraints of legal precedent, as experienced internally, from other influences.  Yet the same could be said, as well, of the amendments.

A more difficult question is whether there is any normative basis for deciding when, if ever, constitutional change must be sought by way of amendment and when the broader array of tools is available.  The answer lies, I think, somewhere in considerations of the rule of law and democracy, in ways that relate as well to the concern for specificity that Strauss identifies as bearing on interpretive latitude. (112-13).   When a specific command of the Constitution—for example, that each state must have two senators—is at issue, overturning this by construction poses real threats to the rule of law.  Is it impossible? No.  By the same reasoning that the holding in Brown was applied, in Bollinger, to the federal government, it would be possible to reason that as, over time the Constitution has come to rest more fully on the principle of popular democracy (as evidenced by the various franchise-expanding amendments), the Fourteenth Amendment itself should now be understood to require apportionment of the Senate by population.  What makes this argument implausible (or, in Strauss’ words, “unthinkable” (103-04)), and inconsistent with both the “rule of law” and with his  conception of the Constitution as “common ground,” is the clarity of the text, not only as to the two senators rule but as to the super-entrenchment of that rule in the Constitution.

So, one can agree that the constitution is “living” and can be interpreted in light of changed understandings without necessarily agreeing that all forms of constitutional change can legitimately be made by amendment.  And one can believe in the legitimacy of interpretive change by the court without necessarily agreeing that litigation, or legislation, are the preferred alternative to constitutional amendment.  Amendments remain a legitimate method of constitutional change; they are of less importance than precedent because they are harder to deploy, not because they are more likely to be ignored; and they offer a uniquely democratic and iterative process for deliberative decision making.

Finally, a question about metaphors.  Although “living constitution” has some provenance in the United States, see Howard McBain, The Living Constitution (1927), I want to suggest that a better metaphor would characterize the type of “organism” to which Justice Holmes referred in his opinion for the Court in Missouri v. Holland (1920), as a rooted rather than a free-floating form of life. In Canada, the term for what was created by Canada’s constituent act is the “living tree,” derived from an opinion by Lord Sankey, written in 1929, interpreting the 1867 constitutional act to include “women” in its textual word “person” so as to permit a woman to serve as a Canadian Senator (even though in 1867 the constitutional act would not have been so understood due to common law limitations on women’s capacities). As I have argued elsewhere, the “living tree” metaphor recognizes both the growth and uncertainty, and the rootedness, of a national constitution in its particular text and context. A “living constitution” conjures an organism, living like humans, and able to move around the entire world should it so desire.  A “living tree,” by contrast, captures the rooted nature of this kind of living law; it is difficult, indeed, completely to escape the past, to uproot the constitution and its text from the soil in which it was first planted.

Those familiar with the Canadian “living tree” doctrine will be struck by the cover art of Strauss’ book, which evokes a tree, though whether living or dead is something of a question.  A brown trunk emerges from the lower part of the book, seemingly growing out of the words in the text of the Constitution. The main part of the trunk then bends sharply to the right, at close to a 90 degree angle; its branches spring out in all directions — left, right, downward and upward.  None of the branches has any color but brown; no leaves are shown.  But at the outer end of some of the branch limbs appear red, or blue, stars.  What is this image supposed to suggest?  Is it a picture of a dead tree, suggesting what can happen to a deeply entrenched constitutional text if it is interpreted in an originalist manner? Or is it a picture of a living tree, reaching for the stars of the nation’s commitments?   Perhaps the ambiguity of the cover art could be seen as reinforcing one of Strauss’ arguments, about the necessity—and importance—of interpretation over time, in understanding, and in maintaining, the organic quality of our Constitution.  This review cannot do full justice to the arguments in this wonderful and accessible book—I hope you will read it.

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Cite as: Vicki Jackson, Constitutional Change and Living Trees, JOTWELL (October 3, 2011) (reviewing David A. Strauss, The Living Constitution (Oxford University Press, 2010)),