Monday, May 10, 2010

Fish on Strauss's Living Constitution

Stanley Fish reviewed David A. Strauss's new book, The Living Constitution, in today's on-line New York Times

0195377273 

Fish takes on Strauss's thesis that "the text of the Constitution will play, at most, a ceremonial role" in constitutional law and that "on a day-to-day basis, American constitutional law is about precedents, and when precedents leave off, it is about commonsense notions of fairness and good policy."

But if Strauss takes a pure anti-dead hand, "living constitution" approach, Fish counters with an original intent response that has gone out of vogue even with the hardest core textualists.  Fish:

The question is not, as Strauss would have it, is this proffered meaning in the Constitution?  The question is, can a chain of inference be formed that links this meaning to something the framers can be said to have intended?

(Emphasis added.)

While the interpretation debate has moved beyond pure-living-constitutionalism versus pure-original-intent--and into "constitutional fidelity" versus any number of variations on originalism--Fish's is a thoughtful review of a provocative book.

SDS

http://lawprofessors.typepad.com/conlaw/2010/05/fish-on-strausss-living-constitution.html

Interpretation, News, Scholarship | Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d8341bfae553ef0133ed770eb8970b

Listed below are links to weblogs that reference Fish on Strauss's Living Constitution:

Comments

‘’Fish takes on Strauss's thesis that "the text of the Constitution will play, at most, a ceremonial role" in constitutional law and that "on a day-to-day basis, American constitutional law is about precedents, and when precedents leave off, it is about commonsense notions of fairness ‘’

I agree with the ‘’mostly ceremonial ‘’ U.S Constitution’’ as used in current U.S. Law. I fail to notice’ Precedent’ or ‘Fairness’ in day by day Court Usage
Perhaps that has always been all Governments ‘usage’ of a body of’ ’’Constitutional law’’. Pretty marble carvings for mass consumption. .

Not to be used when counter to Government or Economic needs. As long as that is acceptable to the mass of the populace, so it shall be.

While some of us would have a Utopian body of Government ‘Law’ a Constitution the Government servants of the citizenry the Economist and the street vender can believe will always be the same ‘Words’ applicable in the same way.

Posted by: carol Budro | May 13, 2010 6:37:45 AM

Post a comment