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Strauss defends the idea of a living Constitution while Scalia famously said he prefers the dead one. Accordingly, Strauss takes originalism to be the primary alternative to his common law method of interpreting the Constitution.
Jul 18, 2014 · In the meantime Strauss reminds his readers of the real and present advantages of living in a modern liberal democracy. “We are not permitted to be flatterers of democracy,” he urges, “precisely because we are friends and allies of democracy.”
- Catherine Zuckert, Michael Zuckert
- 2014
Strauss identifies what he claims are three basic principles that courts use to interpret the First Amendment and he argues that it is impossible to derive those principles from the original meaning of the Amendment (Strauss 2010, 53–55).
- The Common Law
- The Two Traditions
- Attitudes, Not Algorithms
- Originalism, The Common Law, and Candor
Pick up a Supreme Court opinion, in a constitutional case, at random. Look at how the Justices justify the result they reach. Here is a prediction: the text of the Constitution will play, at most, a ceremonial role. Most of the real work will be done by the Court's analysis of its previous decisions. The opinion may begin with a quotation from the ...
There are, broadly speaking, two competing accounts of how something gets to be law. One account-probably the one that comes most easily to mind-sees law as, essentially, an order from a boss. The "boss" need not be a dictator; it can be a democratically-elected legislature. According to this theory, the law is binding on us because the person or e...
This description might seem to make the common law a vague and open-ended system that leaves too much up for grabs-precisely the kinds of criticisms that people make of the idea of a living constitution. When, exactly, can a case be distinguished from an earlier precedent? What are the rules for deciding between conflicting precedents? What are the...
Originalism's trump card-the principal reason it is taken seriously, despite its manifold and repeatedly-identified weaknesses-is the seeming lack of a plausible opponent. "Living constitutionalism" is too vague, too manipulable. But if the living Constitution is a common law Constitution, then originalism can no longer claim to be the only game in...
In the essay, Persecution and the Art of Writing, Strauss posits that information needs to be kept secret from the masses by "writing between the lines". However, this seems like a false premise, as most authors Strauss refers to in his work lived in times when only the social elites were literate enough to understand works of philosophy.
Aug 5, 2014 · Esotericism is the heart of Strauss’s political philosophy. It is his key insight; it defines the hermeneutical methodology he founded and propagated; above all, it animates his experience of intellectual life.
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It explains how and why the challenge to, and the critique of, the philosophical life posed by politics and religion must be grasped as the theme of Leo Strauss’s work and why Strauss takes the philosophical refutation of faith in revelation to be a theologico-political problem.
