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Thursday, August 05, 2010

Vermeule on "The Living Constitution"

Adrian Vermeule has this review, in The New Republic, of two new books on constitutional interpretation:  David Strauss's "The Living Constitution" and "Keeping Faith with the Constitution," by Pam Karlan, Chris Schroeder, and Goodwin Liu.  From the first paragraph:

 Two new books lay out two different accounts of living constitutionalism: “constitutional fidelity” in the first book, “common-law constitutionalism” in the second. These living constitutionalisms have a common enemy—originalism, roughly the idea that the Constitution should be read according to the public meaning the founding generation understood it to have. But once that enemy is slain, the two versions of living constitutionalism face new challenges. In the case of constitutional fidelity the challenges are insuperable, while for common-law constitutionalism they are merely daunting. . .

Later, Adrian writes:

The first questions for any theory of constitutional judging are whether and why the judges should have the power to overturn, in the Constitution’s name, what other officials have decided. If originalism and constitutional fidelity are equally unbounded or plastic, and if neither can show that what the judges do systematically improves upon what legislatures do, however improvement is defined, then the natural reaction is to leave the enforcement of constitutional principles to the legislature itself, at least where reasonable people can disagree about what those principles require. Doing so would curtail the judges’ power of constitutional review, which for all we know adds nothing except delay, and which may even do some harm. Few legal academics are comfortable with such a conclusion, hence the eternal quest of constitutional theorists for some account that will justify the judges’ power. . . .

Read the whole thing!

Posted by Rick Garnett on August 5, 2010 at 01:41 PM in Constitutional thoughts | Permalink


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I did read the whole thing and found it lacking (or maybe just I found the reference to the "troika" and "a typical manifesto" and criticism for not "seriously address this possibility" while the review doesn't seriously address their argument on the point annoying).

It may make some good points but as a book review, it fails. For instance, the review of the second book is more a "well this is the dark side of the theory" than an actual discussion of the book. And, given the hack job on the first book, I don't totally trust his analysis of the book either.

[I read a version of the book, free on the American Constitutional Society website; this one seems largely the same though having an additional chapter. A companion book that has a brief excerpt from David Strauss is also available.]

Posted by: Joe | Aug 6, 2010 11:54:26 AM

With respect to Larry Solum, here's what he said at the end of his post on the reviews:

"Highly recommended & very short!"

I agree with Prof. Solum on both points.

Vermeule has posted several excellent articles on SSRN recently (which Prof. Solum has noted, with recommendations, on his Blog). His reviews impressed me as the search goes on for the "Holy Grail of constitutional interpretation." Vermeule does a two-fer: Challenging both living constitutionalism and the originalism. Also, while not directly, he also questions judicial review and judicial supremacy.

As for Larry Solum, I greatly appreciate what he does with his Legal Theory Blog, as I do Mary Dudziak's Legal History Blog. They provide me with links to great readings on the law. And this Blog adds to theirs.

Posted by: Shag from Brookline | Aug 6, 2010 7:35:39 AM

This is not so significant in the big ol' world, but fwiw, Dodson is not a lawyer (in the common sense of someone who's practicing law) nor does he have advanced degrees or experience in biology such that he's a biologist. So the label to him is odd even if not disconcerting--nothing is lost in terms of credibility by simply saying Professor ___. And the same seems true with the reference to Solum. If it were a non-professor journalist making these references, I could better understand how, in quickness, these references might not seem inaccurate or weird. But for a law prof, my sense is that (assuming Adrian had control) he should have known better. But maybe I'm just being sensitive to these things. Not sure why really--but those sentences popped off the page in an otherwise punchy and interesting review.

Posted by: Dan Markel | Aug 5, 2010 11:30:08 PM

Dan, a friendly disagreement here, on two counts. I didn't read his reference to Solum as a legal blogger -- I would, of course, disagree violently with your use of the phrase "merely a 'legal blogger'" -- as a slight, and I thought his reference to Dodson as a lawyer-biologist strengthened his citation of Dodson, not weakened it. Accordingly, in my view, no apologies or corrections are necessary.

Posted by: Paul Horwitz | Aug 5, 2010 10:46:49 PM

I was about to post something about this TNR review but not for the substance as such but rather two kind of snippy references made therein. I found it odd and disconcerting that the review referred to Larry Solum as merely a "legal blogger" and Scott Dodson as a lawyer-biologist. Does one have to be a professor at a top 10 law school like Strauss/Karlan/Schroeder/Liu to be referred to by one's actual job? In the case of Solum and Dodson, as readers of this blog well know, they are also both professors (or alternatively "legal scholars").

I'm not prepared to blame Adrian for this minor slight because I suspect it might have been a decision by the editor(s) responsible for this piece, but it is his piece and thus in any event, he should probably apologize to Larry and Scott, both of whom are productive and accomplished scholars in their respective fields, and correct the references online and in-print.

Posted by: Dan Markel | Aug 5, 2010 7:10:40 PM

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