An excellent guide to a common law conception of constitutional interpretation, written for non-lawyers as well as lawyers. Even those who do not agree with the thesis or argumentation can be benefit from this succinct and well argued positive statement of a living constitution.

The book proceeds in a few parts, first the book lays out three major criticisms of originalism, which it sets up as a contra-theory, then moves to a brief theory of the common law constitution, giving two examples of the common law constitution's success. The book then concludes on the interaction of the written and common law constitution, which personally I thought was the most novel and interesting part of the book.

Straus's critiques of originalism starts by laying out the various desirable concepts that would not exist under an originalist interpretation, before arguing that originalism makes lawyers amatuer historians (in answering difficult specific questions that may not have good historical answers), that judges cannot translate/apply well historical concepts to modern day issues, and that the theory lacks a moral justification for why the founding should bind the present. Straus argues that moderate originalism or living originalism ducks the difficult un-desirable consequences of originalism by appealing a higher generality of original meaning, but argues rightfully that this erodes the determinacy that is the one of the major advantages that originalism purports to offer compared to other constitutional interpretations.

Straus then moves to explain his positive theory of the common law constitution which he claims is both a descriptive (this is probably true, read any SCOTUS case and it will refer to case law more than the text in most instances) and desirable explanation for constitutional interpretation. Straus cites Burke as justification for a common law system, that is epistemological modesty about having all the right answers, and a reliance on experience rather than abstract logic. One of the arguments Straus makes that I think is incomplete is his response to the originalist critique that non-originalist interpretations are undemocratic because it allows judges to slip their policy preferences into the law. Straus argues that this phenomenon does not occur because the interpretation is non-originalist, but because of judicial supremacy. While, the argument has some merit, it ducks the issue that given a world where judicial supremacy is accepted, what method binds judges? If originalism is determinate, it would bind judges more than less determinate theories. Straus then gives two major examples of common law successes. The first is the freedom of expression, which both shows some of the weaknesses of originalism and the strength of common law. The current historical consensus is that the first amendment was only understood originally to prohibit prior restraint, and not prohibit punishment post-publiciation. However, the Supreme Court's first amendment doctrine evolved out of experience to protect the full expression that we enjoy today. Straus traces the doctrinal development of the current doctrinal tests as evolving over experience, not driven by the bare text or the original understanding of the first amendment. The second example Straus cites as a success of the common law is Brown v. Board of Education. This example showed in more detail common law evolution. Straus argues that the case law before Brown laid the foundation for the holding that separate is never equal. Earlier case law established that states could not rely on demand side arguments to not provide equal accommodations (McCabe), and that equal accommodations required more than tangible equality, that states could not symbolically discriminate (Gaines). While these earlier cases not repudiate separate but equal, they were moving towards a direction that would be made explicit in Brown.

While the theory that Straus lays out has its appeals, I wonder if his method of proof of cherry picking successes really shows the desirability of the common law approach to the constitution. After all, Plessy and the Civil Rights Cases of 1883 were arguably examples of uses of the common law approach that repudiated original understandings that were more desirable than the results produced by the case law. While I understand the book is supposed to be a short introduction to the layman of the common law theory, this is probably a severe limitation on argument by example.

The part of the book that I found most interesting was the chapters on reconciling the written constitution and the living constitution. Straus (wisely I would add) does not advocate chucking out the written constitution. Instead, the written constitution serves important functions as both a legitimating device for case law (it is easier to get people to accept the results by citing portions of the text) and as a coordination/framework to start with. Straus makes the argument that for some problems, it is better that there is an answer even if it is not the best one, and often the constitution provides that answer as a starting point. This resolves the moral legitimacy questions of the founders binding later generations, since each generation adds to the constitution by interpreting it through common law. In my humble opinion, the best part of the book is the last chapter which discusses the relationship between constitutional change and the amendments. Straus argues interestingly that there are examples of constitutional change despite the explicit rejection of an amendment (the equal rights amendment/child labor law amendment), that constitutional change can occur without any textual amendment (the new deal rise of the administrative state for example, or the Madison's view on the evolving constitutionality of a national bank), the sidelining of constitutional amendments that society was not ready for (the Reconstruction amendments), amendments that merely ratified changes that already occurred, bringing outliner states in line with the substantial majority of state practice (by the time of the adoption of the 17th amendment, most states already through state law mandated the direct election of its senators), and amendments that restored common law understandings (the 16th to ratify the common understanding that the government could impose an income tax or the 22nd which limits terms to two).

In short, worth a read for sure. ( )

A brief, favorable discussion of constitutional change through the process of judicial review based on the evolution of common law. His arguments are rational but flawed because the process he favors to make social policy change through the courts, even as a last resort, is not subject to restraint of by the principle of the balance of powers. Compare 'Dread Scott' and 'Roe v. Wade'. The lack of a copy of the constitution detracted from the book, too. ( )