Constitutional Law. Free Speech. Ninth Circuit Denies First Amendment Challenge to Civil Verdict against Anti-Abortion Activists' Intimidating Posters and Website. Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (En banc), Petition for Cert. Filed, 71 U. S. L. W. 3292 (U. S. Oct. 8, 2002) (No. 02-563)

2003 ◽  
Vol 116 (3) ◽  
pp. 977
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
Constitutional Law ◽  
Planned Parenthood ◽  
Ninth Circuit

REASON, THE COMMON LAW, AND THE LIVING CONSTITUTION

Legal Theory ◽  
2011 ◽  
Vol 17 (4) ◽  
pp. 279-300
Author(s):  
Matthew Steilen
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
Constitutional Law ◽  
Large Scale ◽  
Common Law ◽  
Recent Book ◽  
Alternative Account ◽  
What Works ◽  
The Common ◽  
Judicial Action

This article reviews David Strauss's recent book, The Living Constitution. The thesis of Strauss's book is that constitutional law is a kind of common law, based largely on judicial precedent and commonsense judgments about what works and what is fair. In defending this claim, Strauss argues that central constitutional prohibitions of discrimination and protections of free speech have a common-law basis and that the originalist should consequently reject them. The review disputes this contention. It examines Strauss's account of the common law and argues that it cannot support our First Amendment protections of subversive advocacy, as Strauss says it does. The review then offers an alternative account of the common law based on the “classical” common-law theory associated with Coke and Hale. The latter account does support our protections of subversive advocacy but is much less appealing to those distrustful of ambitious and large-scale judicial action.

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