This article is forthcoming in the Drake Law Review (2011).


David Strauss’s wonderful book, The Living Constitution, posits that constitutional interpretation can gain legitimacy by analogy to the common law. This comment argues that the analogy, while plausible and helpful, is not perfect and that the imperfection undermines the claim to legitimacy. The analogy breaks down when it comes to the kinds of principle that are employed under the two types of adjudication. The common law develops principle from the bottom up, by capturing customs and practices that have already gained wide acceptance, while constitutional interpretation develops principle by resort to the abstract textual references in the Constitution, bolstered by aspirational judgments about how best to attain those constitutional ideals. While social practice has some role in that process of principled interpretation, it cannot supply democratic legitimacy as does the common law’s grounding in custom.


Constitutional Law

Date of this Version

July 2011