Introduction

This paper is intended as a contribution to the development of the common law approach to constitutional interpretation as it is advanced by David Strauss and W.J. Waluchow (Strauss 2010; Waluchow 2007, 2008, 2015).

W.J. Waluchow (*) • K. Stevens

Department of Philosophy, McMaster University,

1280 Main St W, Hamilton, ON L8S 4L8, Canada

e-mail: walucho@mcmaster.ca; radziewsky@web.de

© Springer International Publishing Switzerland 2016 275

T Bustamante, B.G. Fernandes (eds.), Democratizing Constitutional Law,

Law and Philosophy Library 113, DOI 10.1007/978-3-319-28371-5_13 meaning of its words within the relevant community, judges are able to take steps toward ensuring that their decisions accord with their community’s constitutional morality, thus avoiding one potentially fatal objection: that the common law approach renders the development of constitutional meaning - and hence constitu­tional rights and freedoms - completely unsettled and utterly dependent on the vari­able and subjective moral views of individual judges.

Even though Strauss’s portion of the combined theory is centered on his account of US constitutional practice, the theory we defend here can be applied to any legal system with a written constitution similar to the American one. By this we mean it can apply to any system with a written constitution containing abstract clauses, some of which make reference to basic civil rights (e.g. the rights to free expression and due process) against which government actions of various sorts are to be mea­sured. Our aim is to show that a written constitution can, despite its seemingly underdetermined nature and apparent propensity to unsettle constitutional practice, serve as a stabilizing factor. It can do so by linking development of the constitution to moral and social developments within the relevant community.¹

In The Living Constitution, Strauss suggests that the US constitution both should be and has been treated as an inherently adaptable part of US law. The US constitu­tion has developed in an evolutionary way according to the same methodological principles that guide development of common law more generally.^{[325] [326] Just as familiar common law notions like n egligent and i nherently dangerous continue to be devel­oped as new circumstances arise, new tort cases are decided and precedents distin­guished, abstract notions like due process and the equal protection of the law continue to develop as new circumstances arise and judges decide the many constitutional cases in which they figure. As Strauss demonstrates, such a common law approach to constitutional law renders it capable of being both flexible enough to stay relevant for an ever-changing society and yet stable enough to constitute a reliable constitutional framework within which everyday law and politics can play out. If constitutional law evolves in line with standard principles of common law methodology, then change will always be possible, but (usually) in a controlled, incremental manner.[327]}

In Chap.

But if the written constitution is to serve as a common ground, there must be some basis for agreement on its meaning. Otherwise, the intractable disputes it was intended to settle or minimize will continue unabated. If Americans cannot agree on the meaning of phrases like equal protection or due process, then the 14^thAmendment cannot serve its role of eliminating or reducing disputes over whether, how and to what extent these notions serve as benchmarks against which to measure govern­ment actions. According to Strauss, if the written constitution is to play its stabiliz­ing role, it should be read as meaning, not what its words meant when the constitution was first established (or amended) but what they currently mean within the relevant society. But this renders his theory vulnerable to the objection that the written con­stitution cannot really function as a stabilizing, common ground because the mean­ings of words routinely change over time. This is certainly true of those abstract and deeply evaluative terms one typically finds in modern constitutions - that is, all those abstract clauses that make reference to basic civil rights. If so, then it appears as though the meanings of written constitutions that include such terms - i.e. virtu­ally all modern constitutions - are continually open to change, thus threatening, if not completely undermining, the stabilizing, common-ground role constitutions are supposed to serve.^[328]

Our principal objective in this paper is to answer this potentially fatal objection to what, following Strauss, we will call the common ground theory of the written constitution. We begin by sketching the common law approach to constitutionalism as Strauss presents it. We then move on to a summary of his conception of the writ­ten constitution. Finally, we attempt to show how a written constitution can provide the desired common ground. That is, we attempt to demonstrate how a written con­stitution can fulfil its purported stabilizing function despite the acknowledged fact that the meanings of many of its words are perpetually open to the possibility of change.

One final word of caution. This paper is intended as a contribution to the devel­opment of the common-law approach to constitutional interpretation, not as a defense of this particular method against rival theories of constitutional interpreta­tion, such as Dworkinian interpretivism or the various originalist theories defended by writers such as Keith Wittington, Larry Solum and Antonin Scalia.^[329] As such, it will not engage with these rival theories. Nor will it attempt to assess their respec­tive merits and disadvantages in relation to the common law theory. We assume here only that the common-law theory is at least plausible enough to justify devel­oping it further so as to ward off at least one potentially serious objection to it. That is the extent of our ambition.

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