Review of David Strauss, _The Living Constitution_ (Univ. of Chicago Press, 2010)

Strauss, David A.  The living Constitution.  Oxford, 2010.  150p index afp; ISBN 9780195377279, $21.95. Reviewed in 2010dec CHOICE.

In this volume, Strauss (law, Univ. of Chicago) provides an accessible and lucid refutation of originalist jurisprudence. In six chapters containing both new and previously published scholarship, originalism is analyzed as a flawed approach to interpreting the Constitution (chapter 1). The common law as the basis for American constitutionalism is defended (chapter 2), the "evolutionary common law" is applied to issues of speech and race (chapters 3 and 4), and the challenges of utilizing a written constitution are discussed (chapters 5 and 6). Unfortunately, the author's occasionally unreflective attitude toward originalism is most obvious when he argues incorrectly that the concept "cannot even claim the one advantage it purports to have over living constitutionalism," namely, the ability to limit judicial activism. Another weakness of an otherwise insightful critique is the author's omission of the nuances of the common law, especially in terms of how the common law contributes to a variety of modes of democratic theory. Regardless of how one interprets the Constitution, this volume will force the reader to reconsider fundamental assumptions about the nature of constitutional interpretation and the American regime while encountering a passionate defense of "an evolutionary form of living constitutionalism." Summing Up: Recommended. All readership levels. -- H. L. Cheek Jr., Athens State University