The Living Constitution
by David Strauss
Anything Goes? The alternative to “Originalism” isn’t a loosey-goosey style of interpretation, but depends on common law and is based on precedent.
Originalism is a zombie idea. It has been dispatched a million times, but it keeps marching on. Like any good zombie, it mutates. Once it was the idea that “original intentions” govern the interpretation of the Constitution; then it became “original understandings;” now the au courant version is the “original public meanings” of the words of the Constitution. In each of its forms, the problems with originalism have been exposed, over and over. But it is still with us.
Why is that? There are many reasons, but one is captured by the politicians’ saying that you can’t beat somebody with nobody. What is the alternative to originalism? The usual answer is “living 
constitutionalism.” And the idea of a living constitution seems to mean, to many people, that judges can just make things up. Elena Kagan made it very clear in her confirmation hearings that she is no originalist. But when asked about “the idea of a living Constitution,” she remarked that “people associate” that idea “with . . .a kind of loosey-goosey style of interpretation in which anything goes, in which there are no constraints, in which judges can import their own personal views and preferences.” And, she added, “I most certainly do not agree with that.”
Kagan’s comment is fair, and revealing. The opponents of originalism have had a hard time explaining what their theory is. My book, called The Living Constitution, is an attempt to give that explanation. The argument of the book is that the alternative to originalism is not “anything goes” but a very familiar kind of law, one that antedates the Constitution itself: the common law, based on precedent. Constitutional principles develop through precedents and traditions, established by court decisions and, in important ways, by the actions of other institutions. The precedents are modified and occasionally overruled, but they determine the basic contours of the law. And like the common law, American constitutional law is influenced by judgments of fairness and social policy—but, again like the common law, only in ways that are constrained and limited by the precedents that have developed.
This is not to say that the text is irrelevant—far from it. On some matters, the text governs absolutely. That is why each state has two Senators, the President leaves office on January 20th of the year after an election, and so on. These are not trivial matters; they are far more important than many of the issues that are routinely litigated in court. And these issues are squarely settled by the text—that is why they are not litigated. Besides that, every constitutional principle, no matter how refined or elaborated by precedent, has to be connected, in some way, to the text. But constitutional law does develop and change over time—something originalists have a hard time explaining. And the principal way that constitutional law develops is not (as originalists would presumably say) by increasingly refined study of the precise wording of the text or by gaining new historical insights into the era in which the text was adopted. It is by the elaboration of precedents in a common-law-like way.
That is our living constitutional system. It is very far removed from “anything goes”—the centuries-long history of the common law of contract, tort, and property is evidence of just how constraining the common law can be. What’s more, it is impossible to understand how constitutional law has developed in the United States without seeing that it is, in important ways, a common law system. In the book, I discuss two of the most notable developments—Brown v. Board of Education, and the law of freedom of speech. Brown is famously hard to justify on originalist grounds, unless originalism is conceived in such an abstract way that it can justify anything. But there is a straightforward common law-like justification for Brown: by the time Brown was decided, the Court had, in a series of cases, chipped away at the principle of “separate but equal” to the point that there was almost nothing left. Brown was not a bolt from the blue but the last step in a line of cases of the kind that is characteristic of the common law.
The law of the First Amendment also presents a common law story. The complex body of law that protects free speech in the United States cannot simply be derived from the text of the First Amendment, which, in isolation, leaves many questions unanswered. It is also not about what the original understandings (or meanings, etc.), some of which are starkly inconsistent with what we take to be absolutely fixed principles today. (For example, at the time the First Amendment was adopted, it seems to have been understood that blasphemy could be outlawed and that “the freedom of speech” had nothing to do with defamation; and attitudes toward putting people in jail for criticizing the government were, by today’s standards, shockingly equivocal.) Instead, the current American constitutional law of free speech is the product of a trial-and-error process that took place over the course of the twentieth century. In that process, the courts—and people outside the courts—hammered out, in fits and starts, by trial and error, the elaborate principles that, today, we think of as “the First Amendment.”
This version of the living constitution is not inherently progressive or conservative. It is simply what our system is. There are well-established conservative and liberal principles of constitutional law that cannot simply be read off of the text of the Constitution and that find little or no support in what the Framers did—but that are firmly rooted in precedent. The great advantage of common law living constitutionalism is that—unlike orignalism—it is candid. It acknowledges that we have to make decisions for ourselves—albeit decisions rooted in what has gone before—instead of simply following orders handed down from the Framers. And it shows how, to quote Solicitor General Kagan again, “development of our constitutional law does indeed occur”—but in a way that does not amount to saying that anything goes.
David A. Strauss is a Professor of Law at the University of Chicago.
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