The Living Constitution

The Living Constitution by David A. Strauss


My rating: 3 of 5 stars
A book about Constitutional interpretation for the interested nonlawyer, arguing for evolving interpretations rather than rooted originalism. Slight, breezy, chatty, with that rare capacity to compress complexities to non-technical language. Which all sounds like a recommendation – and is -- except that going to law school is kind of like accidentally wandering into one of those machines that turns people into Cybermen from Doctor Who: it sticks probes in through your every orifice, replaces half your brain with new circuitry, and rewires the rest to a new sensory pallet of evil that the normal-brained can’t access. Whoa, simile police!

What I mean is that I can’t read popular law books anymore, because they just don’t work on me. I spent this entire book constructing a series of more or less legalistic criticisms, and wasn’t really able to appreciate what it was doing in its own circumscribed domain. Strauss is a brilliant lawyer (and a really great guy, by the way) but he managed not to sound like one for this entire book, which is pretty remarkable, actually.

A few of my criticisms, incidentally, in brief: I disagreed with the substance of the historical counterfactual about the passage of the Equal Rights Amendment resulting in the same framework for evaluating gender discrimination that we have extra-constitutionally now (I think this is just flat wrong), I find the characterizations of Dennis undercut the message about common law constitutional jurisprudence, I thought the book set up some straw man arguments by failing to distinguish absurd original text Originalism and, say, original public meaning Originalism, etc. et lawyer cetera.

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