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Living Constitution

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There are two dominant views of the American Constitution. The first holds that it is a remarkably stable foundation of our deepes... Weiterlesen
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There are two dominant views of the American Constitution. The first holds that it is a remarkably stable foundation of our deepest values, protected from the shifting tides of public opinion. The second holds that our interpretation of it needs to change with the times given that the founders had no idea how our society would evolve. Holders of the former view--best known as ",originalists",--contend that if we don't treat the Constitution's meaning as fixed, judges can say that the Constitution means whatever they want it to mean. In The Living Constitution (part of the Inalienable Rights book series) acclaimed constitutional scholar David Strauss argues that these two approaches are reconcilable. Strauss begins by contending that a rigid originalist approach, which is now more powerful than ever given the Court's conservative bent, is intellectually indefensible. While many might therefore conclude that the circle cannot be squared, Strauss shows that the common law tradition--which accounts for constant incremental social change yet which respects the constraints of tradition--drives a great deal of constitutional reasoning. The common law tradition respects the power of original understandings yet also can adust to social changes, and The Living Constitution is an eloquent defense of its role in Constitutional law.


David A. Strauss is the Gerald Ratner Distinguished Service Professor of Law at the University of Chicago, and one of the nation's leading constitutional law scholars. He has also served as Special Counsel to the United States Senate Judiciary Committee and Assistant Solicitor General of the United States, and argued eighteen cases before the United States Supreme Court. David Strauss is an editor of the Supreme Court Review.


Supreme Court Justice Antonin Scalia once remarked that the theory of an evolving, "living" Constitution effectively "rendered the Constitution useless." He wanted a "dead Constitution," he joked, arguing it must be interpreted as the framers originally understood it. In The Living Constitution, leading constitutional scholar David Strauss forcefully argues against the claims of Scalia, Clarence Thomas, Robert Bork, and other "originalists," explaining in clear, jargon-free English how the Constitution can sensibly evolve, without falling into the anything-goes flexibility caricatured by opponents. The living Constitution is not an out-of-touch liberal theory, Strauss further shows, but a mainstream tradition of American jurisprudence--a common-law approach to the Constitution, rooted in the written document but also based on precedent. Each generation has contributed precedents that guide and confine judicial rulings, yet allow us to meet the demands of today, not force us to follow the commands of the long-dead Founders. Strauss explores how judicial decisions adapted the Constitution's text (and contradicted original intent) to produce some of our most profound accomplishments: the end of racial segregation, the expansion of women's rights, and the freedom of speech. By contrast, originalism suffers from fatal flaws: the impossibility of truly divining original intent, the difficulty of adapting eighteenth-century understandings to the modern world, and the pointlessness of chaining ourselves to decisions made centuries ago. David Strauss is one of our leading authorities on Constitutional law--one with practical knowledge as well, having served as Assistant Solicitor General of the United States and argued eighteen cases before the United States Supreme Court. Now he offers a profound new understanding of how the Constitution can remain vital to life in the twenty-first century.


Introduction: Do We Want A Living Constitution? 1. Originalism and Its Sins 2. The Common Law 3. Freedom of Speech and the Living Constitution 4. Brown v. Board of Education and Innovation in the Living Constitution 5. Common Ground and Jefferson's Problem 6. Constitutional Amendments and the Living Constitution


Titel: Living Constitution
EAN: 9780199703692
ISBN: 978-0-19-970369-2
Digitaler Kopierschutz: Adobe-DRM
Format: E-Book (pdf)
Herausgeber: Oxford University Press
Genre: Recht
Anzahl Seiten: 176
Veröffentlichung: 19.05.2010
Jahr: 2010
Untertitel: Englisch