The Living Constitution

Supreme Court Justice Antonin Scalia once remarked that the theory of an evolving, "living" Constitution effectively "rendered the Constitution useless." He wanted a "dead Constitution," he joked, arguing it must be interpreted as the framers originally understood it.

In The Living Constitution, leading constitutional scholar David Strauss forcefully argues against the claims of Scalia, Clarence Thomas, Robert Bork, and other "originalists," explaining in clear, jargon-free English how the Constitution can sensibly evolve, without falling into the anything-goes
flexibility caricatured by opponents. The living Constitution is not an out-of-touch liberal theory, Strauss further shows, but a mainstream tradition of American jurisprudence--a common-law approach to the Constitution, rooted in the written document but also based on precedent. Each generation
has contributed precedents that guide and confine judicial rulings, yet allow us to meet the demands of today, not force us to follow the commands of the long-dead Founders. Strauss explores how judicial decisions adapted the Constitution's text (and contradicted original intent) to produce some of
our most profound accomplishments: the end of racial segregation, the expansion of women's rights, and the freedom of speech. By contrast, originalism suffers from fatal flaws: the impossibility of truly divining original intent, the difficulty of adapting eighteenth-century understandings to the
modern world, and the pointlessness of chaining ourselves to decisions made centuries ago.

David Strauss is one of our leading authorities on Constitutional law--one with practical knowledge as well, having served as Assistant Solicitor General of the United States and argued eighteen cases before the United States Supreme Court. Now he offers a profound new understanding of how the
Constitution can remain vital to life in the twenty-first century.


"If David Strauss's marvelous book doesn't convince Justice Scalia to accept rather than abhor the idea of a living constitution, nothing will." --William Wargo, The Vermont Bar Journal

"Writing in prose that laymen will find lucid and inviting, Strauss makes the usually fuzzy idea of a living Constitution rigorous and substantive."--Publishers Weekly

"Succinct and elegant"--Steve Chapman, Chicago Tribune

"Strauss keeps a low public profile but legal scholars know him to be a first-class mind. This book, written for the general reader, shows that he is also a master stylist, whose prose is Orwellian in the good sense: clear as a pane of glass."--The New Republic

"Whatever one may think of these issues, it is clear that Strauss has provided a great service to both academics and the general reading public. He has produced a short, accessible, well-written, thoughtful, and incisive defense of living constitutionalism, one which can also serve as a valuable
introduction to foundational debates about the nature of constitutional interpretation."--The Law & Politics Book Review

"Timely and important...a novel and creative contribution to the ongoing debate about the nature of the U.S. Constitution, and will influence the dialogue for years to come."--Harvard Law Review

"I regard The Living Constitution to be a tremendous success. It deserves to be widely read by students, lay people, and specialists."--Notre Dame Philosophical Reviews