Monday, May 10, 2010
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?
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.