Recently, I did a podcast interview on Constitutional Amendments and the Presidential Election. The interview, which was conducted by the National Constitutional Center, also featured David Strauss of the University of Chicago. Jeff Rosen, the President of the National Constitution Center and a Professor at George Washington Law School, was the interviewer.
It was an interesting discussion, which focused both on the constitutional amendment process and the impact that Hillary Clinton and Donald Trump might have on constitutional change if they were elected.
It was fun discussing these issues with David Strauss, because his views are so diametrically the opposite of mine. Many nonoriginalists resist being described as living constitutionalists. Strauss embraces it. He takes the opposite position of mine on a whole range of specific issues, which follows from his more general approach.
Strauss believes two main things about constitutional change. First, he claims that the actual practice of constitutional change occurs through judicial decisions and other governmental actions. In fact, he believes that constitutional amendments are largely irrelevant. Second, he believes that constitutional amendments are not generally a good way generally of changing the Constitution. The way that is actually practiced – where judges follow a common law like system – is better.