Strauss’ Common Law Constitutionalism and the Place of the Written Constitution
13.2.1 The Common Law Approach
Strauss claims that a good constitution must meet two sets of requirements that appear difficult to reconcile. On the one hand a constitution needs to be flexible and adaptable.
An unchanging constitution would serve its constituency badly. Societies, their common views and practices, as well as their technological possibilities, are all subject to continual change. In order that they might stay relevant, constitutions must therefore also be capable of change. An unchanging constitution would be at risk of either being ignored or being a serious hindrance to progress (Strauss 2010, 1-2). On the other hand, a constitution is meant to fix a set of rules, fundamental principles and values that can serve as a stable basis in terms of which a society is able to define itself morally and politically and conduct its most important affairs. If these rules, principles and values are continually subject to change and manipulation according to fleeting opinion and social changes, then it is far from clear how the constitution can serve its purported stabilizing and defining function (Strauss 2010, 1-2). A constitution therefore has to be ‘both living, adapting, and changing and, simultaneously, invincibly stable and impervious to human manipulation’ (Strauss 2010, 1-2).Strauss claims that the US Constitution has been able to accomplish an adequate blend of fixity and adaptability because it has been permitted to develop along the lines of well-established principles of common law methodology (Strauss 2010, p. 33, 34). According to the common law approach, law develops over time as the evolutionary product of a great number of decisions in specific cases (Strauss 2010, p. 37). The common law principle of stare decisis, (‘let the decision stand’) requires that every new legal decision be consistent with precedents established in earlier cases.
An implication of this doctrine is the following: once a court has answered a question, then unless certain special conditions obtain, the same question in new cases must meet with the same response from that particular court or level of court, or from courts lower in the judicial hierarchy. This is not to say, of course, that precedent must be followed in all cases. In some instances, a court is able to depart from an otherwise binding precedent by distinguishing the facts of the case before it from those that obtained in the precedent-setting case - that is, by citing at least one legally relevant difference between the two cases in light of which a different decision is warranted. That it cannot only be negligently manufactured but is also inherently dangerous might serve to distinguish a lethal weapon from a washing machine. This difference might serve to relieve a court of its duty to follow a precedent involving the latter in deciding whether to hold a weapons manufacturer liable for injuries caused by his negligent manufacturing practices. In rarer cases, a court is also capable of overturning an earlier precedent entirely, thus enabling it to depart significantly, if not dramatically, from a former line of thinking. This is arguably what occurs in so-called “landmark” decisions like Brown v Board of Education, where the US Supreme Court repudiated the s eparate but equal doctrine it established in Plessy v Ferguson. The Court declined to follow precedent, thus rejecting a long-standing decision that had been used to legitimize racial segregation for well over 50 years.[330]According to Straus, common law methodology is especially well suited to constitutional law. On the one hand it facilitates change and adaptation in the face of pressing social needs, changing circumstances and new views about justice. It does so insofar as it embraces the possibility of distinguishing cases or overturning precedents established under its terms. On the other hand, it also allows for a degree of stability insofar as it requires judges normally to respect and follow earlier decisions involving similar facts.
Normally, no adequate basis for distinguishing cases and/or overruling relevant constitutional precedents will be available to the judge and so she will be bound to follow the prior ruling even if she might have preferred a different course of action. And even when the relevant precedents leave open the possibility of deciding differently, they can narrow the range of available options considerably (Strauss 2010, 40). This most evidently occurs in cases of distinguishing, where judges are barred from disturbing the decisions made in earlier cases. Suppose the relevant precedent establishes the following ratio decidendi: Whenever A, B, & C, then X (e.g. the defendant is liable in negligence).[331] The instant case features A, B, and C as well, but for some relevant reason it seems wrong - unjust, manifestly contrary to reason, etc. - to hold the defendant, D2, liable. Perhaps he, unlike the earlier defendant, D1, took all reasonable steps to avoid the harm. The judge will be able to absolve D2 of responsibility by distinguishing the two cases and adding a new condition to the ratio. It now reads: Whenever A, B, C & not-R, then X, where R stands for “the defendant took all reasonable steps to avoid the harm.” What is crucial here is that had the modified ratio been applied in the earlier case, the result would have been the same: i.e., D1 would still have been liable since he, unlike D2, did not take all reasonable steps. In this way the law can be developed, but not in a way that seriously threatens its capacity to serve the cause of stability, as would be the case were judges free in all cases to substitute a wholly new ratio for the one relied on in earlier cases. Of course, sometimes cases arise in which no relevant precedent seems available. In such cases, Strauss suggests, judges must make decisions according to their own views of what is just or unjust (Strauss 2010, 38). The judge’s decision will enter the law as a precedent, its weight and influence being determined by further developments within the common law, the place of the judge within the judicial hierarchy, and so on. The important point to stress is that the influence that such a novel decision has on the common law will be determined, not by a single judge, but by the slow and cautious working out of the principle for which the precedent is later taken to stand. Even seemingly radical decisions that overrule weighty precedent are often not as radical and productive of instability as is often portrayed. Such decisions, e.g., Brown and MacPherson v Buick Motor Co., are usually preceded by a lengthy development within the common law system that justifies such breaks with tradition (Strauss 2010, 80 ff.).13.2.2 The Written Constitution
After having introduced and defended his common law approach to constitutionalism, Strauss sets out to integrate the written US Constitution into the theory. He sees the primary role of the written constitution as the establishment of a common ground for the community, making it possible for its members to settle disputes by appealing to a written and stable text that is respected by all of them (Strauss 2010, p. 101). In most cases, the text of the US constitution either settles the relevant question completely, or it considerably limits the number of available answers (Strauss 2010, p. 104). Furthermore, the text is precise or vague in exactly the right places. It is precise enough to settle questions regarding matters like the President’s length of office, a matter about which it is more important to have a clear, firm, reasonable answer known and agreed upon in advance, than it is to have a solution that allows for further assessment of all the relevant factors as they arise in different cases (see Sect. 1). On the other hand, when it comes to certain other questions the text is vague enough to guide, but not completely settle the relevant issues - e.g., when and where we should be permitted to express ourselves freely. Here the quality of the answer provided in any given case is likely to be much more important than that a clear, firm, agreed-upon solution be available beforehand.
When these latter sorts of questions are in play, room must be made for further argument and development, which the underdetermined, vague provisions of the written constitution make possible (Strauss 2010, 111). As Strauss puts it,It takes a certain kind of genius to construct a document that uses language specific enough to resolve some potential controversies entirely and to narrow the range of disagreement on others - but that also uses language general enough not to force on a society outcomes that are so unacceptable that they discredit the document. The genius of the U.S. Constitution is precisely that it is specific where specificity is valuable and general where generality is valuable - and it does not put us in unacceptable situations that we can’t plausibly interpret our way out of (Strauss 2010, 112).
So according to Strauss, the written US constitution is able to serve, to varying degrees, a stabilizing, settlement function and hence serve as a common ground for settling disputes. It allows disputes to be decided in the right ways at the right times, and in ways that even those who might otherwise not have agreed in advance can nevertheless accept as legitimate. However, in order for the constitution to be able to serve its role of establishing a common ground, its meaning must be accessible to all those over whom it is supposed to hold sway, not just that small number of individuals who happen to be educated in the history of its interpretation and development. It is for this reason that Strauss suggests that, in interpreting the written constitution, judges should attribute to it the meaning its words bear in current, common English (Strauss 2010,106).[332] It makes sense to adhere to the text so understood even if it does not thereby provide the best possible solution for the case at hand. The main reason is that the function of a written constitution as a common ground would be seriously endangered if it were not interpreted this way. The “words of the Constitution should be given their ordinary, current meaning - even in preference to the meaning the framers understood. The idea is to find common ground on which people can agree today. The current meaning of words will be obvious and a natural point of agreement. The original meaning might be obscure and controversial” (Strauss 2010, 106). So the common ground function of the written constitution has implications for the plausibility of originalism, the main competitor to Strauss’s common law constitutional theory. It provides strong reason to adhere to the text’s current, common meaning rather than to any meanings and intentions ascribable to the framers. The former is much more accessible and therefore capable of serving as a common ground (Strauss 2010, p. 108).
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