Living Without A 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.

Explores the little-understood relationship between the written Constitution and the many external factors that shape the interpretations of this foundational document.

Covering the history of Israel since its birth, this comprehensive discussion focuses on the historical, ideological and political determinants of the civil rights issues within Israel. Important topics covered include the historical and ideological roots of Israeli democracy; the problems of a collective society during the establishment of a democratic state; the legal and political attitudes towards human rights in the Occupied Territories and the implications of these attitudes for the peace process; the dilemma of a democracy in a state of war; and problems of democracy versus national security. The author makes use of interviews with prominent national policy makers.

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.

There is a great difficulty in the way of a writer who attempts to sketch a living Constitution-a Constitution that is in actual work and power. The difficulty is that the object is in constant change. An historical writer does not feel this difficulty: he deals only with the past; he can say definitely, the Constitution worked in such and such a manner in the year at which he begins, and in a manner in such and such respects different in the year at which he ends; he begins with a definite point of time and ends with one also. But a contemporary writer who tries to paint what is before him is puzzled and a perplexed: what he sees is changing daily. He must paint it as it stood at some one time, or else he will be putting side by side in his representations things which never were contemporaneous in reality.

John Compton shows how evangelicals, not New Deal reformers, paved the way for the most important constitutional developments of the twentieth century. Their early-1800s crusade to destroy property that made immorality possible challenged founding-era legal protections of slavery, lotteries, and liquor sales and opened the door to progressivism.

In this original, provocative contribution to the debate over economic inequality, Ganesh Sitaraman argues that a strong and sizable middle class is a prerequisite for America’s constitutional system. For most of Western history, Sitaraman argues, constitutional thinkers assumed economic inequality was inevitable and inescapable—and they designed governments to prevent class divisions from spilling over into class warfare. The American Constitution is different. Compared to Europe and the ancient world, America was a society of almost unprecedented economic equality, and the founding generation saw this equality as essential for the preservation of America’s republic. Over the next two centuries, generations of Americans fought to sustain the economic preconditions for our constitutional system. But today, with economic and political inequality on the rise, Sitaraman says Americans face a choice: Will we accept rising economic inequality and risk oligarchy or will we rebuild the middle class and reclaim our republic? The Crisis of the Middle-Class Constitution is a tour de force of history, philosophy, law, and politics. It makes a compelling case that inequality is more than just a moral or economic problem; it threatens the very core of our constitutional system.