Common Law Constitutional Interpretation: A Critique

Abstract

Advocates for some form of original understanding as the proper means for interpreting the Constitution managed to set the terms of the interpretive debate for nearly the last three decades. In part, their success is due to the perception that “it takes a theory to beat a theory.” Indeed many liberal legal scholars, Jack Balkin most recently, have simply decided to beat originalists at their own game by invoking history to justify Supreme Court decisions thought to be beyond redemption as a matter of original understanding. Paraphrasing Jefferson, then, are we all originalists now?

David Strauss, for one, answers with a resounding No! Since the 1996 publication of his article, Common Law Constitutional Interpretation, Strauss has labored to create an constitutional interpretation emulating the common law method (hereinafter “common law constitutional interpretation” or “CLCI”) that Strauss argues is superior to originalism, both normatively and as a description of what the Court, in fact, does in most cases.

His latest work, The Living Constitution, synthesizes his writings and provides, with admirable brevity, an interpretive alternative to originalism. After Strauss, no one can say that originalism’s opponents lack a theory. The question rather is whether CLCI “beats” originalism by compensating for the latter’s shortcomings without proving to have theoretical shortcomings itself. As I argue here, I think that Strauss’s case falls short. He devotes little space to explaining what, exactly, CLCI is and how it should be applied by courts. Strauss then contrasts CLCI with a caricatured originalism that bears little resemblance to the sophisticated theories of original understanding propounded by scholars today. Specifically, I question some of the assumptions underlying CLCI, note the absence of any definition of the “common law method,” and argue that his objections to originalism are not particularly persuasive. Ultimately, I conclude that we do not have enough information about CLCI to determine whether it is, in fact, superior to theories of original understanding (as opposed to the straw-man version of originalism Strauss offers) in most cases.

Keywords: David Strauss, common law constitutional interpretation, Supreme Court, originalism, judicial review, constitutional interpretation

JEL Classification: K10