Commentary Magazine


Topic: assistant solicitor general

Pity the Constitution

To the century-old debate about whether the Constitution is “living” or static, we may now add yet another argument, an even more woeful assault on the founding document of our country. David Strauss — who claims to be an eminent constitutional-law scholar — views the Constitution as a mere Rorschach test for the collective psyche of the polis.

Writing in an unlikely forum, Florida International University law professor Stanley Fish subjects Strauss’s new book to a much-needed vivisection. He first boils down Strauss’s thesis:

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? …

[Strauss states that the] “written Constitution is valuable because it provides a common ground among the American people.” But as it turns out, common ground is provided not by the Constitution itself but by a survey of “widely acceptable” meanings, which are then attributed to the Constitution as if it were their source. The text, Strauss advises, “should be interpreted in the way best calculated to provide a point on which people can agree.” The way to do this, he adds, is to give the words of the Constitution “their ordinary current meaning — even in preference to the meaning the framers understood.” After all, “the original meaning might be obscure and controversial.”

Believe it or not, even the New York Times can’t stomach Strauss’s assertion:

This is an amazing statement. The Constitution becomes common ground when it becomes a vessel for meanings it does not contain. It acts as a binding agent as long as you don’t take it seriously but take care to pretend that you do. As long as an interpretation of the Constitution “can plausibly say that it honors the text, the text can continue to serve the common ground function.” … The incoherence of what Strauss is urging is spectacularly displayed in a single sentence. Given the importance of common ground, “it makes sense,” he says, “to adhere to the text even while disregarding the framers’ intentions.”

Fish concludes that “if this is what the ‘living Constitution’ is — a Constitution produced and reproduced by serial acts of infidelity — I hereby cast a vote for the real one.”

Theoretically, Strauss is one step further from what a “living Constitution” is. The concept’s original adherents, if they may be taken at their word, saw the “living Constitution” as a way to pull the text into the modern age, amplifying its meaning, not undermining it. Among angels, this may have worked. But Strauss shows what implementing a “living Constitution” looks like in the real world.

His conclusion is fiddlesticks but not for lack of logic. There’s a perfectly reasonable devolution from an established Constitution to a living Constitution to a populist legal system. The question becomes, if the Constitution is “living,” who’s breathing life into it? And with what intentions?

Strauss’s book reminds us that the debate about the Constitution is far from theoretical, and the stakes are high. In fact, Strauss has already held positions high enough to promote his thesis. He was special counsel to the Senate Judiciary Committee. He was the assistant solicitor general. He has argued many times before the Supreme Court, and he edits the Supreme Court Review.

Furthermore, one might find it disconcerting to know that Strauss has been singing former colleague Elena Kagan’s praises across the media. He has said: “Elena is a resolutely non-ideological person. She is great at asking hard questions. She does not approach issues with preconceived views; she tries to figure things out. She is practical and tough-minded.”

Much has yet to be determined about what Elena Kagan thinks. But if she, like her colleague, believes in a living Constitution, are we prepared to accept the interpretation with which she animates it on our behalf?

To the century-old debate about whether the Constitution is “living” or static, we may now add yet another argument, an even more woeful assault on the founding document of our country. David Strauss — who claims to be an eminent constitutional-law scholar — views the Constitution as a mere Rorschach test for the collective psyche of the polis.

Writing in an unlikely forum, Florida International University law professor Stanley Fish subjects Strauss’s new book to a much-needed vivisection. He first boils down Strauss’s thesis:

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? …

[Strauss states that the] “written Constitution is valuable because it provides a common ground among the American people.” But as it turns out, common ground is provided not by the Constitution itself but by a survey of “widely acceptable” meanings, which are then attributed to the Constitution as if it were their source. The text, Strauss advises, “should be interpreted in the way best calculated to provide a point on which people can agree.” The way to do this, he adds, is to give the words of the Constitution “their ordinary current meaning — even in preference to the meaning the framers understood.” After all, “the original meaning might be obscure and controversial.”

Believe it or not, even the New York Times can’t stomach Strauss’s assertion:

This is an amazing statement. The Constitution becomes common ground when it becomes a vessel for meanings it does not contain. It acts as a binding agent as long as you don’t take it seriously but take care to pretend that you do. As long as an interpretation of the Constitution “can plausibly say that it honors the text, the text can continue to serve the common ground function.” … The incoherence of what Strauss is urging is spectacularly displayed in a single sentence. Given the importance of common ground, “it makes sense,” he says, “to adhere to the text even while disregarding the framers’ intentions.”

Fish concludes that “if this is what the ‘living Constitution’ is — a Constitution produced and reproduced by serial acts of infidelity — I hereby cast a vote for the real one.”

Theoretically, Strauss is one step further from what a “living Constitution” is. The concept’s original adherents, if they may be taken at their word, saw the “living Constitution” as a way to pull the text into the modern age, amplifying its meaning, not undermining it. Among angels, this may have worked. But Strauss shows what implementing a “living Constitution” looks like in the real world.

His conclusion is fiddlesticks but not for lack of logic. There’s a perfectly reasonable devolution from an established Constitution to a living Constitution to a populist legal system. The question becomes, if the Constitution is “living,” who’s breathing life into it? And with what intentions?

Strauss’s book reminds us that the debate about the Constitution is far from theoretical, and the stakes are high. In fact, Strauss has already held positions high enough to promote his thesis. He was special counsel to the Senate Judiciary Committee. He was the assistant solicitor general. He has argued many times before the Supreme Court, and he edits the Supreme Court Review.

Furthermore, one might find it disconcerting to know that Strauss has been singing former colleague Elena Kagan’s praises across the media. He has said: “Elena is a resolutely non-ideological person. She is great at asking hard questions. She does not approach issues with preconceived views; she tries to figure things out. She is practical and tough-minded.”

Much has yet to be determined about what Elena Kagan thinks. But if she, like her colleague, believes in a living Constitution, are we prepared to accept the interpretation with which she animates it on our behalf?

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