In the Aug. 2 issue of New Republic online, HLS Professor Adrian Vermeule ’93 reviews two new books: “Keeping Faith with the Constitution” by Goodwin Liu, Pamela S. Karlan, and Christopher H. Schroeder and “The Living Constitution” by David Strauss. Vermeule’s latest book is Law and the Limits of Reason (Oxford University Press 2009).
Justice Holmes described the Constitution as an “organism,” and some people say that “we have a living Constitution.” What do such metaphors mean? Two new books lay out two different accounts of living constitutionalism: “constitutional fidelity” in the first book, “common-law constitutionalism” in the second. These living constitutionalisms have a common enemy—originalism, roughly the idea that the Constitution should be read according to the public meaning the founding generation understood it to have. But once that enemy is slain, the two versions of living constitutionalism face new challenges. In the case of constitutional fidelity the challenges are insuperable, while for common-law constitutionalism they are merely daunting.