Common Law Constitutionalism
One of Chicago’s Best Ideas, developed by Professor David Strauss, is that our constitutional law develops primarily in a common law fashion rather than through application of the constitutional text. Strauss has further argued that this common law approach is superior to an “originalist” approach to the Constitution because it allows for needed innovation while still imposing meaningful constraints on judges. Professor Bradley will describe the case for common law constitutionalism as well as some of the leading critiques of this theory. He will also consider the implications for this theory of the recent upsurge in support on the Supreme Court for originalism and textualism, and, relatedly, the Court’s possible willingness to overturn precedents like Roe v. Wade.
Bradley, Curtis A., "Common Law Constitutionalism" (2022). Chicago's Best Ideas. 114.
January 1, 2022