Prof. Solum on Originalism Prof. Strauss on Living Constitution

I would like you all to pay careful attention to Prof. Solum's statement on originalism and Prof. Strauss's statements on Living Constitutionalism.

Here are some questions to consider

1. What is Originalism?

2. How does Originalism differ from Living Constitutionalism?

3. Is Originalism required if the Court is to follow the rule of law as opposed to the rule of men? What is the Rule of Law? Is a "common law" constitution part of the Rule of Law or the Rule of Man?

4. If ratification by three-fourths of the states is what gives the Constitution legitimacy as coming from we the people in the several states, what are we to think when the Court employs  "living constitutionalism" to judicially amend the Constitution? Is this merely a legitimate form of the common law?

5. If the Court can't judicially amend the Constitution to keep it up to date with the changing circumstances of 21st Century America, how will we go about dealing with change?

 

6.  Prof. Strauss defends the living, common law constitution this way:

 " A common law Constitution is a "living" Constitution, but it is also one that can protect fundamental principles against transient public opinion, and it is not one that judges (or anyone else) can simply manipulate to fit their own ideas." If the common law constitution is mostly about precedential opinions from earlier cases, exactly who wrote those opinions? Is the common law constitution "turtles [i.e., judges] all the way down"? Today's judges remodeling and extending the opinions of earlier judges? 

{See Wikipedia: "Turtles all the way down" is an expression of the problem of infinite regress. The saying alludes to the mythological idea of a World Turtle that supports a flat Earth on its back. It suggests that this turtle rests on the back of an even larger turtle, which itself is part of a column of increasingly larger turtles that continues indefinitely}