David A. Strauss

91 Texas L. Rev. 1969

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In what sense is the Constitution we live under today the product of “we the people”?  Despite the appeal of assigning a meaningful democratic pedigree to our Constitution, Professor Strauss identifies several questions that suggest that our Constitution is more the product of they the people, and that our system of common law constitutionalism has departed from what the ratifying and amending generations intended.  The idea of common law constitutionalism is that we resolve controversial questions of constitutional law not by examining the text of the Constitution but on the basis of precedents, both judicial and non-judicial, combined with judgments of fairness and good policy.  Professor Strauss demonstrates how common law constitutionalism can be democratic, despite the fact that it allows unelected judges to override the elected branches through judicial review.  Contrary to appearances, a judge-centric system is democratic for several reasons.  First, although federal judges do not run for office and cannot easily be turned out of office, they are embedded in a democratic system. Second, precedent reflects popular sentiment to a degree.  Finally, judicial review itself will become vulnerable if the courts deviate from public opinion too much and too often.  Therefore, although our written Constitution was the work of they the people, our evolutionary Constitution is, in important ways, the work of we the people.