In a Public Discourse essay today, I review a recent book attacking originalism and defending the idea of a living Constitution. The author, I must say, has an interesting spin on the latter argument:
[T]here remains, among the advocates of a living Constitution, a palpable anxiety regarding the idea’s philosophical and political legitimacy. It is hard to justify an approach to constitutional interpretation that makes an unelected, life-tenured judiciary a transformative institution, authorized to frustrate the popular will in order to advance a vision of a better democracy. It is hardest of all when the animating principles of that vision seem wholly unconnected to the historic traditions of the American constitutional order, traditions to which the alternative jurisprudential school of “originalism” so strongly appeals. The task of today’s defenders of the living Constitution, then, is somehow to convince the American people of the idea’s “conservative” credentials, as both true to our traditions and capable of constraining judicial behavior and rendering it trustworthy.
This is the task that University of Chicago law professor David A. Strauss sets for himself in The Living Constitution . . .
An interesting spin, but not a convincing one. You can read the whole essay here.