Isabella Carter
In his book, *The Living Constitution*, David A. Strauss, a law professor at the University of Chicago, explores the idea of a living constitution, which is one that evolves, adapts to new circumstances, and changes over time without being formally amended. Strauss' work is a defence of an approach to constitutional interpretation that rejects the notion of original intent. He argues that the originalist interpretation of the constitution, which holds that the document's meaning is fixed to its original form, is impractical and fails to address the challenges of the modern world. Strauss highlights the amateur historian problem, the problem of translation, and Jefferson's Problem as key issues with originalism.
| Characteristics | Values |
|---|---|
| Living Constitution | Evolves, changes over time, adapts to new circumstances without being formally amended |
| Originalism | Implausible results, indeterminacy, amateur historian problem, problem of translation, Jefferson's Problem |
| Originalist Interpretation | Dead document |
| Common Ground Function | Usefulness for achieving a political settlement of matters that have to be settled clearly |
Explore related products
What You'll Learn
Originalism and its defects
In his book, *The Living Constitution*, David A. Strauss, a law professor at the University of Chicago, argues against originalism, which interprets the Constitution as a "dead document" rather than a living one. Strauss identifies several defects in originalism.
Firstly, there is the "amateur historian problem", which refers to the lack of historical expertise among judges tasked with interpreting the Constitution. This leads to difficulties in ascertaining the "original understandings" of key phrases in the Constitution, such as "freedom of speech". Even if judges could uncover these original meanings, it would remain unclear how to translate them into the modern context.
Secondly, Strauss presents Thomas Jefferson's argument that "the earth belongs to the living", implying that one generation cannot bind another to its words. This challenges the notion that we should be bound by the interpretations of people long dead, an idea that Strauss refers to as "Jefferson's Problem". Strauss points out that the founders did not intend for their "intentions" to be forever imposed on future generations, and had they intended to do so, they would have better documented their debates and compromises during the Philadelphia Convention.
Thirdly, Strauss notes that originalism can lead to implausible results. He highlights how originalists would have to give up several uncontroversial constitutional understandings if they applied their theory consistently. For example, originalists would have to reject the principles that racial segregation and gender discrimination are unconstitutional, and that states are bound by the First Amendment. Even prominent originalists like Justice Antonin Scalia have acknowledged the extreme and impractical outcomes of originalism.
Finally, Strauss argues that originalism leads to a problematic judicial process. While originalism forbids judges from openly defending their strongly held views, it requires them to attribute their interpretations to the Framers, resulting in debates that are conducted in "pretend-historical terms". This indeterminacy can make it challenging for judges to set aside their personal beliefs and adhere to the originalist framework.
Rents, Foreign LLCs, and Interstate Commerce: What's the Verdict?
You may want to see also
The amateur historian problem
In his book, *The Living Constitution*, David A. Strauss, a law professor at the University of Chicago, discusses the "amateur historian problem" as one of the issues with originalism, or the interpretation of the Constitution as a "dead document" that does not evolve or change over time.
The "amateur historian problem" refers to the challenge of judges attempting to interpret the "original understandings" of the Constitution without the necessary historical expertise. This is particularly challenging when considering that many of the key phrases in the Constitution, such as "freedom of speech," may not have had settled understandings back in the eighteenth century. As such, it can be difficult for judges to uncover the original intent behind these phrases and apply them to modern contexts.
For instance, originalists would have to give up many uncontroversial constitutional understandings, such as the principle that racial segregation is unconstitutional, the principle that gender discrimination is unconstitutional, and the principle that the states are bound by the First Amendment. Even prominent originalists like Justice Antonin Scalia have acknowledged that originalism can lead to extreme results that they are unwilling to accept.
Strauss argues that the "amateur historian problem" is not simply a matter of historical interpretation but also involves the challenge of translating those understandings into the present day. This is known as "Jefferson's Problem," named after Thomas Jefferson's statement that "the earth...belongs to the living." Jefferson's Problem questions why we should be bound by the constitutional understandings of people long dead, especially when the world has changed so significantly since the Constitution was adopted.
In conclusion, the "amateur historian problem" highlights the challenges faced by judges in interpreting the Constitution through an originalist lens. It underscores the difficulties in uncovering original understandings and translating them into modern contexts, ultimately calling into question the feasibility of strictly adhering to the original intent of the Constitution without considering the evolving nature of society.
The Constitution Writers' Age: A Historical Perspective
You may want to see also
The problem of translation
In his book, *The Living Constitution*, David A. Strauss, a law professor at the University of Chicago, discusses the problem of translation in the context of constitutional interpretation. The problem of translation refers to the challenge of applying the original understandings of the Constitution to today's society.
The Constitution, as a written document, was adopted over 200 years ago and has since undergone significant changes. The world has evolved, with advancements in technology, shifts in the international situation, economic transformations, and social changes that could not have been anticipated when the Constitution was first established.
Strauss argues that originalism, or the interpretation of the Constitution based on its original intent, can lead to implausible results. He highlights that even prominent originalists like Justice Antonin Scalia have acknowledged that originalism can generate extreme outcomes that they may not be comfortable with.
To address the problem of translation, Strauss suggests that the Constitution should be viewed as a living document rather than a dead document under originalism. This means that the Constitution should be allowed to evolve and adapt to new circumstances without the need for formal amendments. By treating the Constitution as a living document, we can ensure that it remains relevant and applicable to modern society, even in the face of significant societal and technological changes.
Mandatory Duties: US Citizenship Responsibilities Explained
You may want to see also
Explore related products
Jefferson's Problem
In his book, *The Living Constitution*, David Strauss, a leading expert on constitutional law, argues that a "living constitution" is necessary because otherwise, the constitution would become an "archaic relic" that is unable to meet the demands of a changing society. He identifies three major flaws with the "originalist" constitutional doctrine, one of which is "Jefferson's Problem".
Thomas Jefferson once wrote, "The earth... belongs to the living," and concluded that one generation's words could not bind a subsequent generation. This is "Jefferson's Problem": why should we consider ourselves bound to the words of our long-dead ancestors? Strauss's answer to this is that the text of the Constitution is to be valued for its "common ground function", which is its usefulness for achieving a political settlement of matters that must be settled clearly. The text of the Constitution provides an answer that most people can agree on, narrowing the range of potential disagreements.
However, Jefferson can also be quoted to support an originalist view. In 1801, he wrote that the Constitution "shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United States, at the time of its adoption". This indicates that Jefferson believed that constitutional provisions should be interpreted according to their original understanding, not "modern, evolved" standards of meaning.
Strauss also notes that Jefferson believed that institutions must evolve with the development of society, but he fails to acknowledge that Jefferson saw the primary mechanism of such innovation as being the actions of the legislature. Constitutional provisions are written in broad, general language to permit elected bodies like legislatures and Congress to address the problems of today, rather than to enable future judges to interpret them in light of changing societal conditions.
Drones, Drug Dogs, and Traffic Stops: What's Constitutional?
You may want to see also
The common ground function
In his book, *The Living Constitution*, David A. Strauss, a law professor at the University of Chicago, explores the idea of the US Constitution as a "living document" rather than a dead document as interpreted by originalists. Strauss identifies and addresses the issues with originalism, including the "amateur historian problem", the "problem of translation", and "Jefferson's Problem".
The "amateur historian problem" refers to the fact that judges may not have the necessary historical expertise to uncover the "original understandings" of the Constitution. This is further complicated by the "problem of translation", which involves the challenge of applying those original understandings to today's society, which differs significantly from the eighteenth century when the Constitution was written.
"Jefferson's Problem" stems from Thomas Jefferson's belief that "the earth belongs to the living", implying that one generation's words cannot bind another. This idea is echoed by Strauss, who questions why we should be bound by the interpretations of people long dead, especially when the original intentions of the founders may not be entirely clear or relevant to the present and future.
Strauss offers a unique perspective on "Jefferson's Problem" by highlighting the Constitution's "common ground function". This refers to the usefulness of the Constitution in achieving political settlements by providing clear answers to matters that need to be settled. For instance, the Constitution specifies that one must be 35 years old to run for President, offering a point of agreement that narrows the range of potential disagreements. Thus, the authority of the Constitution does not stem from a duty of obedience to the "Founding Fathers" but from its ability to provide a common ground for resolving disputes.
By acknowledging the challenges associated with originalism and highlighting the evolving nature of society, Strauss' argument for a "living Constitution" underscores the need for a flexible and adaptable approach to constitutional interpretation. This living constitution allows for changes and adaptations to new circumstances without the need for formal amendments, ensuring that the document remains relevant and responsive to the needs of a dynamic society.
Founding Fathers: Educated or Not?
You may want to see also
Frequently asked questions
Strauss argues that the US Constitution is a "living document" that evolves, changes over time, and adapts to new circumstances, without being formally amended. He criticises originalism, which interprets the Constitution as a "dead document" based on the "original intent" of the framers.
Strauss identifies several issues with originalism, including the amateur historian problem, the problem of translation, and Jefferson's Problem. The first is that judges may not have the historical expertise to interpret the "original understandings" of the Constitution. Second, even if they could, it would be difficult to apply those understandings to today's society. Finally, Thomas Jefferson's argument that "the earth belongs to the living" suggests that one generation's words cannot bind another.
Strauss notes that originalism can lead to implausible results, such as the unconstitutionality of racial segregation, gender discrimination, and federal labour, consumer protection, and environmental laws.
Strauss argues that the text of the Constitution provides "common ground" and helps to narrow the range of potential disagreements. It offers a political settlement of matters that need to be clearly decided, such as the minimum age requirement for running for President.
