ABSTRACT
Viewing the battle in this way is somewhat misleading, since some of the most formidable antagonists of originalism, Lawrence Tribe and Ronald Dworkin, refuse to be described as advocates of a living constitution. Historical change in a democracy, it would seem, requires a constitution that permits an elasticity of interpretation as a check against the dead hand of the past. Americans glory in the Constitution as if it were our national bible. David Strauss would seem to agree with Scalia that the written constitution per se is not alive. It is the ebb and flow of the common law supplemented by the written constitution that is alive. Like Strauss, Scalia acknowledges that ours is a common law tradition and he concedes that stare decisis allows for deviations from originalist interpretation. What literature and literary interpretation can teach judges, if not lawyers, who are condemned to advocacy, is a greater openness and responsiveness to opposing views of a case.
