The Living Constitution

David A. Strauss

Do we have a living Constitution? Do we want to have a living Constitution? A living Constitution is one that evolves, changes over time, and adapts to new circumstances, without being formally amended. On the one hand, the answer has to be yes: there's no realistic alternative to a living Constitution. Our written Constitution, the document under glass in the National Archives, was adopted 220 years ago. It can be amended, but the amendment process is very difficult. The most important amendments were added to the Constitution almost a century and a half ago, in the wake of the Civil War, and since that time many of the amendments have dealt with relatively minor matters.

Meanwhile, the world has changed in incalculable ways. The nation has grown in territory and its population has multiplied several times over. Technology has changed, the international situation has changed, the economy has changed, social mores have changed, all in ways that no one could have foreseen when the Constitution was drafted. And it is just not realistic to expect the cumbersome amendment process to keep up with these changes.

So it seems inevitable that the Constitution will change, too. It is also a good thing, because an unchanging Constitution would fit our society very badly. Either it would be ignored or, worse, it would be a hindrance, a relic that keeps us from making progress and prevents our society from working in the way it should.

On the other hand, there seem to be many reasons to insist that the answer to that question-do we have a living Constitution that changes over time?-cannot be yes. In fact, the critics of the idea of a living constitution have pressed their arguments so forcefully that, among people who write about constitutional law, the term "the living constitution" is hardly ever used, except derisively. The Constitution is supposed to be a rock-solid foundation, the embodiment of our most fundamental principles-that's the whole idea of having a constitution. Public opinion may blow this way and that, but our basic principles-our constitutional principles-must remain constant. Otherwise, why have a Constitution at all?

Even worse, a living Constitution is, surely, a manipulable Constitution. If the Constitution is not constant-if it changes from time to time-then someone is changing it, and doing so according to his or her own ideas about what the Constitution should look like. The "someone," it's usually thought, is some group of judges. So a living Constitution becomes not the Constitution at all; in fact it is not even law any more. It is just some gauzy ideas that appeal to the judges who happen to be in power at a particular time and that they impose on the rest of us.

So it seems we want to have a Constitution that is both living, adapting, and changing and, simultaneously, invincibly stable and impervious to human manipulation. How can we escape this predicament?

The good news is that we have mostly escaped it, albeit unselfconsciously. Our constitutional system, without our fully realizing it, has tapped into an ancient source of law, one that antedates the Constitution itself by several centuries. That ancient kind of law is the common law. The common law is a system built not on an authoritative, foundational, quasi-sacred text like the Constitution. Rather, the common law is built out of precedents and traditions that accumulate over time. Those precedents allow room for adaptation and change, but only within certain limits and only in ways that are rooted in the past. Our constitutional system has become a common law system, one in which precedent and past practices are, in their own way, as important as the written Constitution itself. A common law Constitution is a "living" Constitution, but it is also one that can protect fundamental principles against transient public opinion, and it is not one that judges (or anyone else) can simply manipulate to fit their own ideas.

The bad news is that, perhaps because we do not realize what a good job we have done in solving the problem of how to have a living Constitution, inadequate and wrongheaded theories about the Constitution persist. One theory in particular-what is usually called "originalism"-is an especially hardy perennial. Originalism is the antithesis of the idea that we have a living Constitution. It is the view that constitutional provisions mean what the people who adopted them-in the 1790s or 1860s or whenever-understood them to mean. (There are different forms of originalism, but this characterization roughly captures all of them.) In the hands of its most aggressive proponents,originalism simply denies that there is any dilemma about the living Constitution. The Constitution requires today what it required when it was adopted, and there is no need for the Constitution to adapt or change, other than by means of formal amendments.

There is something undeniably natural about originalism. If we're trying to figure out what a document means, what better place to start than with what the authors understood it to mean? Also, as a matter of rhetoric, everyone is an originalist sometimes: when we think something is unconstitutional-say, widespread electronic surveillance of American citizens-it is almost a reflex to say something to the effect that "the Founding Fathers" would not have tolerated it. And there are times, although few of them in my view, when originalism is the right way to approach a constitutional issue. But when it comes to difficult, controversial constitutional issues, originalism is a totally inadequate approach. It is worse than inadequate: it hides the ball by concealing the real basis of the decision. But if the idea of a living Constitution is to be defended, it is not enough to show that the competing theory-originalism-is badly flawed. You can't beat somebody with nobody. So I will describe the approach that really is at the core of our living constitutional tradition, an approach derived from the common law and based on precedent and tradition.

* * *

The Common Law

Pick up a Supreme Court opinion, in a constitutional case, at random. Look at how the Justices justify the result they reach. Here is a prediction: the text of the Constitution will play, at most, a ceremonial role. Most of the real work will be done by the Court's analysis of its previous decisions. The opinion may begin with a quotation from the text. "The Fourth Amendment provides . . .," the opinion might say. Then, having been dutifully acknowledged, the text bows out. The next line is "We"-meaning the Supreme Court-"have interpreted the Amendment to require . . . ." And there follows a detailed, careful account of the Court's precedents.

Where the precedents leave off, or are unclear or ambiguous, the opinion will make arguments about fairness or good policy: why one result makes more sense than another, why a different ruling would be harmful to some important interest. The original understandings play a role only occasionally, and usually they are makeweights or the Court admits that they are inconclusive. There are exceptions, like Heller, the recent decision about the Second Amendment right to bear arms, where the original understandings take center stage. But cases like that are very rare.

Advocates know what actually moves the Court. Briefs are filled with analysis of the precedents and arguments about which result makes sense as a matter of policy or fairness. Oral argument in the Court works the same way. The text of the Constitution hardly ever gets mentioned. It is the unusual case in which the original understandings get much attention. In constitutional cases, the discussion at oral argument will be about the Court's previous decisions and, often, hypothetical questions designed to test whether a particular interpretation will lead to results that are implausible as a matter of common sense.

The contrast between constitutional law and the interpretation of statutes is particularly revealing. When a case concerns the interpretation of a statute, the briefs, the oral argument, and the opinions will usually focus on the precise words of the statute. But when a case involves the Constitution, the text routinely gets no attention. On a day-to-day basis, American constitutional law is about precedents, and when the precedents leave off it is about common sense notions of fairness and good policy.

What's going on here? Don't we have a Constitution? We do, but if you think the Constitution is just the document that is under glass in the National Archives, you will not begin to understand American constitutional law. Our nation has over two centuries of experience grappling with the fundamental issues-constitutional issues-that arise in a large, complex, diverse, changing society. The lessons we have learned in grappling with those issues only sometimes make their way into the text of the Constitution by way of amendments, and even then the amendments often occur only after the law has already changed.

But those lessons are routinely embodied in the cases that the Supreme Court decides, and also, importantly, in traditions and understandings that have developed outside the courts. Those precedents, traditions, and understandings form an indispensable part of what might be called our small-c constitution: the constitution as it actually operates, in practice.That small-c constitution-along with the written Constitution in the Archives-is our living Constitution.

* * *

The Two Traditions

There are, broadly speaking, two competing accounts of how something gets to be law. One account-probably the one that comes most easily to mind-sees law as, essentially, an order from a boss. The "boss" need not be a dictator; it can be a democratically-elected legislature. According to this theory, the law is binding on us because the person or entity who commanded it had the authority to issue a binding command, either, say, because of the divine right of kings, or-the modern version-because of the legitimacy of democratic rule. So if you want to determine what the law is, you examine what the boss, the sovereign, did-the words the sovereign used, evidence of the sovereign's intentions, and so on.

Originalism is a version of this approach. As originalists see it, the Constitution is law because it was ratified by the People, either in the late 1700s or when the various amendments were adopted. Anything the People did not ratify isn't the law. If we want to determine what the Constitution requires, we have to examine what the People did: what words did they adopt, and what did they understand themselves to be doing when they adopted those provisions. And we have to stop there. Once we look beyond the text and the original understandings, we're no longer looking for law; we're doing something else, like reading our own values into the law.

The command theory, though, isn't the only way to think about law. The common law approach is the great competitor of the command theory, in a competition that has gone on for centuries. The early common lawyers saw the common law as a species of custom. It would make no sense to ask who the sovereign was who commanded that a certain custom prevail, or when, precisely, a particular custom became established. Legal systems are now too complex and esoteric to be regarded as society-wide customs. But still, on the common law view, the law can be like a custom in important ways. It can develop over time, not at a single moment; it can be the evolutionary product of many people, in many generations.

Similarly, according to the common law view, the authority of the law comes not from the fact that some entity has the right, democratic or otherwise, to rule. It comes instead from the law's evolutionary origins and its general acceptability to successive generations. For the same reason, according to the common law approach, you cannot determine the content of the law by examining a single authoritative text or the intentions of a single entity. The content of the law is determined by the evolutionary process that produced it. Present-day interpreters may contribute to the evolution-but only by continuing the evolution, not by ignoring what exists and starting anew.

Characteristically the law emerges from this evolutionary process through the development of a body of precedent. A judge who is faced with a difficult issue looks to see how earlier courts decided that issue, or similar issues. The judge starts by assuming that she will do the same thing in the case before her that the earlier court did in similar cases. Sometimes-almost always, in fact-the precedents will be clear, and there will be no room for reasonable disagreement about what the precedents dictate. But sometimes the earlier cases will not dictate a result. The earlier cases may not resemble the present case closely enough. Or there may be earlier cases that point in different directions, suggesting opposite outcomes in the case before the judge. Then the judge has to decide what to do.

At that point-when the precedents are not clear-a variety of technical issues can enter into the picture. But often, when the precedents are not clear, the judge will decide the case before her on the basis of her views about which decision will be more fair or is more in keeping with good social policy. This is a well-established aspect of the common law: there is a legitimate role for judgments about things like fairness and social policy.

It is important not to exaggerate (nor to understate) how large a role these kinds of judgments play in a common law system. In any well-functioning legal system, most potential cases do not even get to court, because the law is so clear that people do not dispute it, and that is true of common law systems, too. Even in the small minority of cases in which the law is disputed, the correct answer will sometimes be clear. And-perhaps the most important point-even when the outcome is not clear, and arguments about fairness or good policy come into play, the precedents will limit the possible outcomes that a judge can reach.

Attitudes, not algorithms

This description might seem to make the common law a vague and open-ended system that leaves too much up for grabs-precisely the kinds of criticisms that people make of the idea of a living constitution. When, exactly, can a case be distinguished from an earlier precedent? What are the rules for deciding between conflicting precedents? What are the rules about overturning precedents?

For the most part, there are no clear, definitive rules in a common law system. The common law is not algorithmic. The better way to think about the common law is that it is governed by a set of attitudes: attitudes of humility and cautious empiricism. These attitudes, taken together, make up a kind of ideology of the common law. It's an ideology that was systematically elaborated by some of the great common law judges of early modern England. The most famous exponent of this ideology was the British statesman Edmund Burke, who wrote in the late eighteenth century. Burke, a classic conservative, wrote about politics and society generally, not specifically about the law. But he took the common law as his model for how society at large should change, and he explained the underpinnings of that view.

The first attitude at the basis of the common law is humility about the power of individual human reason. It is a bad idea to try to resolve a problem on your own, without referring to the collected wisdom of other people who have tried to solve the same problem. That is why it makes sense to follow precedent, especially if the precedents are clear and have been established for a long time. "We are afraid to put men to live and trade each on his own stock of reason," Burke said, "because we suspect that this stock in each man is small, and that the individuals would do better to avail themselves of the general bank and capital of nations." The accumulated precedents are "the general bank and capital." It is an act of intellectual hubris to think that you know better than that accumulated wisdom.

The second attitude is an inclination to ask "what's worked," instead of "what makes sense in theory." It is a distrust of abstractions when those abstractions call for casting aside arrangements that have been satisfactory in practice, even if the arrangements cannot be fully justified in abstract terms. If a practice or an institution has survived and seems to work well, that is a good reason to preserve it; that practice probably embodies a kind of rough common sense, based in experience, that cannot be captured in theoretical abstractions. To quote Burke again: "The science of government being . . . so practical in itself, and intended for such practical purposes, a matter which requires experience, and even more experience than any person can gain in his whole life, . . . it is with infinite caution that any man ought to venture upon pulling down an edifice, which has answered in any tolerable degree for ages the common purposes of society."

Originalism, the common law, and candor

Originalism's trump card-the principal reason it is taken seriously, despite its manifold and repeatedly-identified weaknesses-is the seeming lack of a plausible opponent. "Living constitutionalism" is too vague, too manipulable.

But if the living Constitution is a common law Constitution, then originalism can no longer claim to be the only game in town. The common law has been around for centuries. In non-constitutional areas like torts, contracts, and property, the common law has limited judges' discretion and guided the behavior of individuals. And while the common law does not always provide crystal-clear answers, it is false to say that a common law system, based on precedent, is endlessly manipulable.

A common law approach is superior to originalism in at least four ways.

  • The common law approach is more workable. Originalism requires judges and lawyers to be historians. The common law approach requires judges and lawyers to be-judges and lawyers. Reasoning from precedent, with occasional resort to basic notions of fairness and policy, is what judges and lawyers do. They have done it for a long time in the non-constitutional areas that are governed by the common law.
  • The common law approach is more justifiable. The common law ideology gives a plausible explanation for why we should follow precedent. One might disagree, to a greater or lesser extent, with that ideology. Perhaps abstract reason is better than Burke allows; perhaps we should be more willing to make changes based on our theoretical constructions. Sometimes the past is not a storehouse of wisdom; it might be the product of sheer happenstance, or, worse, accumulated injustice. But there is unquestionably something to the Burkean arguments. And to the extent those arguments are exaggerated, the common law approach has enough flexibility to allow a greater role for abstract ideas of fairness and policy and a smaller role for precedent.

Originalists, by contrast, do not have an answer to Thomas Jefferson's famous question: why should we allow people who lived long ago, in a different world, to decide fundamental questions about our government and society today? Originalists do not draw on the accumulated wisdom of previous generations in the way that the common law does. For an originalist, the command was issued when a provision became part of the Constitution, and our unequivocal obligation is to follow that command. But why? It is one thing to be commanded by a legislature we elected last year. It is quite another to be commanded by people who assembled in the late eighteenth century.

  • The common law approach is what we actually do. Originalists' America-in which states can segregate schools, the federal government can discriminate against anybody, any government can discriminate against women, state legislatures can be malapportioned, states needn't comply with most of the Bill of Rights, and Social Security is unconstitutional-doesn't look much like the country we inhabit. In controversial areas at least, the governing principles of constitutional law are the product of precedents, not of the text or the original understandings. And in the actual practice of constitutional law, precedents and arguments about fairness and policy are dominant.
  • The common law approach is more candid. This is an important and easily underrated virtue of the common law approach, especially compared to originalism. The common law approach explicitly envisions that judges will be influenced by their own views about fairness and social policy. Common law judges have operated that way for centuries. This doesn't mean that judges can do what they want. Judgments of that kind can operate only in a limited area-the area left open by precedent, or in the circumstances in which it is appropriate to overrule a precedent. But because it is legitimate to make judgments of fairness and policy, in a common law system those judgments can be openly avowed and defended, and therefore can be openly criticized.

Originalism is different. An originalist claims to be following orders. An originalist cannot be influenced by his or her own judgments about fairness or social policy-to allow that kind of influence is, for an originalist, a lawless act of usurpation. An originalist has to insist that she is just enforcing the original understanding of the Second Amendment, or the Free Exercise Clause of the First Amendment, and that her own views about gun control or religious liberty have nothing whatever to do with her decision.

That is an invitation to be disingenuous. Originalism, as applied to the controversial provisions of our Constitution, is shot through with indeterminacy-resulting from, among other things, the problems of ascertaining the original understandings and of applying those understandings to the modern world once they've been ascertained. In the face of that indeterminacy, it will be difficult for any judge to sideline his or her strongly held views about the underlying issue. But originalism forbids the judge from putting those views on the table and openly defending them. Instead, the judge's views have to be attributed to the Framers, and the debate has to proceed in pretend-historical terms, instead of in terms of what is, more than likely, actually determining the outcome. Having said all that, though, the proof is in the pudding, and the common law constitution cannot be effectively defended until we see it in operation. But for that, you'll have to read the book.

David Strauss's book, The Living Constitution, was published in 2010 by Oxford University Press, and this excerpt has been printed with their permission. Strauss is the Gerald A. Ratner Distinguished Service Professor of Law.


The Living Constitution by David A. Strauss

With all due respect, Prof. Strauss is wrong for at least two major reasons. The first is that unlike, say, The United Kingdom, The United States does have a written Constitution, not a “common law” Constitution, any more than we have “common law” crimes in this country. So he posits a false comparison from the outset. The second is that each of Strauss’s cited reasons for favoring a non-existent “common law” constitution is either easily refutable or demonstrably false. Let us consider them one by one: (1) “The common law approach is more workable,” Prof. Strauss says, because actually reading and abiding by the Constitution (“originalism”) “requires judges and lawyers to be historians,” which is evidently too much to ask of people who have spent three years in law school. But those who fail to learn the mistakes of the past are doomed to repeat them, and we disregard the lessons of our history at our peril. Although statutes may perhaps safely be interpreted with reference to “precedent, with occasional resort to basic notions of fairness and policy,” the Constitution is not a statute; it is a framework against which the constitutionality of statutes may be judged. Its principles do not change over time unless we amend it, and the sooner judges and lawyers get comfortable with its text and its history, the better. Perhaps law schools could start teaching it. (2) “The common law approach is more justifiable,” Strauss next asserts, in a bit of tautological reasoning: it’s more justifiable because it’s more justifiable. Clearly, Prof. Strauss prefers his own brilliance to the accumulated wisdom of Madison, Monroe, and the rest of the Founders, but it borders on the absurd to reject that accumulated wisdom by saying that “[o]riginalists do not draw on the accumulated wisdom of previous generations in the way that the common law does.” The Constitution perforce reflects the collected wisdom of some of the best and brightest produced by Western Civilization to the point of its adoption, plus that of those who have amended it as recently as 1992. The “common law” approach is more akin to “the telephone game,” at the end of which the message bears little resemblance to that originally intended. (3) Prof. Strauss’s third argument, that “[t]he common law approach is what we actually do,” simply seeks to institutionalize disregard for the Constitution’s language by saying that we should ignore the Constitution’s actual language because “nobody reads it anyway.” This is not a serious scholarly argument and does not deserve to be treated as such. Try telling a judge in your next case, for example, that your client should not be penalized for ignoring the law because nobody follows it anyway. (4) Finally, says Prof. Strauss, “[t]he common law approach is more candid.” By this he seems to mean that he believes judges do – and should – make social and political policy based on their own views of fairness and policy, so we might as well not pretend otherwise. This is really a restatement of argument (3) and needs no further refutation, but policy-making is the role of the political branches of government, as the Constitution’s text makes clear. Article I vests legislative power in the Congress and Article II vests the executive power in the office of the President. Under Article III, Section 2, the judicial power of the United States extends only to cases and controversies – not to making social policy and political judgments, however much a court’s decision of any given case or controversy may influence or be influenced by such policy. At bottom, heedless of the separation of powers, Professor Strauss seems to want to conflate at least two branches of the government, the legislative and the judicial. The “common law constitution” that Professor Strauss advocates is unwise and un-Constitutional. David L. Applegate, U of C Law '78

The Common Law Constitution

Unhappily, you seem to misunderstand what constitutes the common law.  To the extent that the Constitution is interpreted through a case-by-case articulation of meaning, it is common law.  What does the First Amendment demand?  New York Times v. Sullivan tells us.  Subsequent cases refine, modify or reverse the interpretation.

Not necessarily. If,

Not necessarily. If, hypothetically(although this might be hard in practice), the cases in question followed the actual intent of the Founding Fathers faithfully it would not be common law because nothing in the interpretation would have changed.

Strict Construction

In my view, this comment was far more persuasive than the article itself. To the author, seemingly, a constitutional concept can mean one thing to a particular judge today and another thing to a different judge tomorrow. The fact is that the Founders, for all their flaws, had a profound understanding of political philosophy, and the Constitution is the manifestation of that understanding. To see that work mangled by those ignorant of (or even hostile to) our history is tragic; judges, for example, who justify any instrusion of the federal government into state concerns by citing the commerce clause or, most recently, the power to tax. Thus, the living Constitution concept has permitted what was to be a limited federal government of enumerated powers to be converted into a leviathan that claims dominion over every aspect of the affairs of its citizenry. How can one argue that the same Constitution authorizes both? The Founders provided for 2 methods to amend the Constitution: ruling from the bench is not one of them. If the people of this country want to permit amendment of the Constitituion by common law, all it would take is a single constitutional amendment. Of course, such an amendment would never pass, which, I suspect, is why the author does not propose resolving the issue within the parameters of the Constitution itself.

What is the Constitution, and how do we answer that question?

"Don't we have a Constitution? We do, but if you think the Constitution is just the document that is under glass in the National Archives, you will not begin to understand American constitutional law. Our nation has over two centuries of experience grappling with the fundamental issues--constitutional issues--that arise in a large, complex, diverse, changing society. The lessons we have learned in grappling with those issues only sometimes make their way into the text of the Constitution by way of amendments, and even then the amendments often occur only after the law has already changed.  But those lessons are routinely embodied in the cases that the Supreme Court decides, and also, importantly, in traditions and understandings that have developed outside the courts. Those precedents, traditions, and understandings form an indispensable part of what might be called our small-c constitution: the constitution as it actually operates, in practice.That small-c constitution--along with the written Constitution in the Archives--is our living Constitution."

It's fine to define a new term to refer to our tradition of constitutional law, but the key question, as I see it, is which of these--or something else--is the Article VI "this Constitution" which officeholders have sworn to obey.   For one attempt to answer it, see

Time to settle this question

The Constitution is in the custody of the living. They alone have the power to change it, and they alone have the power to leave it as it is. And what the people decide to do with their Constitution, will be determined by their interpretation of it, in the language and idiom of their time.

Thus, at whatever point in time a judge is called upon to determine the meaning of the Constitution,it is his job to do no more, and no less, than to declare the meaning of the text in the language and idiom of the time.

It is the ever present possibility for change which is provided for in the text of the Constitution, and the perpetual reposing of that power in the hands of those who are alive and on the electoral rolls, which settles this matter.
The dead, in contrast, have no say in changing the Constitution and nothing to say about its interpretation. They are no longer parties to the contract.

Original fallacies

Thank you Mr. Strauss. These are great points. As a 1L, I have been struggling with the idea of interpretation. I often wonder how self-proclaimed originalists can rationalize beating people over the head with the constitution in regards to certain issues, while blatantly ignoring other obvious incongruities.

Let's take for example an interpretation of the 2nd Amendment, which is most commonly interpreted exclusively as an individual's absolute right to bear arms. I don't know that I've ever heard an originalist even mention the fact that many of the States included language like, "Standing Armies in time of Peace are dangerous to Liberty" in the original drafts of the 2nd Amendment, which would impart that the true purpose of the 2nd Amendment was to prevent our government from amassing a large military industrial complex, which could then be turned against the people to enforce tyrannical government. Thus, a true originalist should say that the right to bear arms is directly tied to the unconstitutionality of a standing army in peace time. It is a right that is coupled with the subordination of the military to the civilian's rule.

When was the last time you heard someone talking about the unconstitutionality of our professional military when exalting their right as a citizen to own a gun? I can't say that I ever have. It doesn't make much sense in our post-world war and anti-terrorism reality. Would our nation have survived the great conflicts of history with the ragtag citizen's militia that our Founding Fathers envisioned? I doubt it. Did our founding fathers envision citizens having unrestricted access to killing machines of all sort, tanks and nuclear weapons? I think not.  

So, is it only acceptable to evolve our interpretation of certain provisions so long as long as there is no strict, textual conflict that prohibits us from doing so?

Or are originalists so deceived by their own arrogance that they fail to acknowledge the short comings in attempting to appropriate the views of men who lived during a time when slavery was accepted; the mode of transportation was horse and buggy; the most deadly weapon was a front loaded cannon; and the best form of medicine was leech therapy?

Speaking for myself, although

Speaking for myself, although originalist I am divided between two possible originalist theories- Literal Meaning Theory and Intentionalist Theory. My views on your argument:

-Literal Meaning Theory, I would say that there is no reference to a standing army in the Constitution so it's a matter of the clauses I don't know very well regarding whether a standing army comes under "defence" (I'm guessing it does, but I really don't know for sure)

-Intentionalist Theory. Yes, you are correct. However, I'm going to explain why that isn't a problem.

I'm not going to claim these theories don't have pragmatic consequences. For a start I would argue that the Louisana Purchase was unconstitutional as was the means of the admission of new states into the Union with all the consequences therein- by contrast, the secession of the CSA was perfectly constitutional.

In philosophy, there is a dispute between Deontological and Consequentialist views. A Consequentialist judges an action by it's consequences, whilst a Deontologist judges it's action by reference to more general moral rules. A Consequentialist literally cannot endorse a single legal theory and remain consistent as they must believe in whatever theory has the best consequences in any given circumstance, even if inconsistent. Therefore I will refer to a Deontological approach.

By a Deontological approach, it doesn't matter how bad the consequences are so long as you follow the rules. A Deontologist who believes in "Thou shalt not lie" will not lie even if the universe is going to be destroyed. Some theorists allow for exceptions but make their rules on what exceptions are permitted very clear.

There are no other approaches. Hence, it is absurd to speak of pragmatic consequences in matters of legal theory.

Strict Constructionism

Hail the constitution! Let there be no common law but that which is delegated explicitly to the federal government. State's Rights now! State's Rights Tomorrow! State's Rights forever! The states preserve your rights, but the federal government takes them away! Freedom! Read the tenth amendment.

Living Constitution

Then, after reading the 10th amendment, read the 14th.

I'm also going to point out

I'm also going to point out here that the current method of "Living Constitution" devolves policy-making powers to the judges. I see no reasonable way to defend judges as SUPERIOR policy-makers to politicians when factoring for the advisors each branch recieves.

My views on this

If you read legal scholarship, you will see that a division of labor has sprung up over the last 20 years. Specifically, conservatives critique living constitutionalism and defend originalism; liberals critique originalism. Apparently liberals believe that if they henpeck originalism to death, living constitutionalism will somehow emerge, as if by default, as an acceptable mode of interpretation. Accordingly, liberals rarely go further. (I recently reviewed Mark Tushnet's new book which purportedly explores "competing visions" of the constitution but which, in reality, throws jabs at originalism while completely sidestepping any explanation of the liberal "vision" of the constitution.) Here, Strauss does go further. He offers the standard issue criticisms of originalism. But he also argues that living constitutionalism can provide answers to the two normative questions that originalists have introduced into the debate over constitutional interpretation during the past 30 years: (1) that judges should cabin their individual discretion and (2) that constitutional decisions must be "legitimate." Whereas originalists find restraint in the "original public meaning" of the document and legitimacy in its democratic adoption, Strauss finds both restrain and legitimacy in the common law. Specifically, the common law has "authority" because its rules "have been worked out over an extended period" of time (38) and it restrains judges because of its incremental approach which is "cautious" and "humble."