Amendments are meaningless without correcting judicial precedent.

It’s Supreme Court nomination time again, which means that it will soon be nomination hearing time, which means that Elena Kagan will soon be asked how she believes the Constitution should be interpreted. But just in time comes a new book — “The Living Constitution,” by David A. Strauss — that tells us not to bother about that question because, odd though it might seem, the Constitution does not play a central role in constitutional interpretation. In the majority of instances, Strauss argues, “the text of the Constitution will play, at most, a ceremonial role.” Even “when a case involves the Constitution, the text routinely gets no attention,” for “on a day-to-day basis, American constitutional law is about precedents, and when precedents leave off, it is about commonsense notions of fairness and good policy.” Although rhetorically we have a constitutional legal system — one constrained by a command given in the past and embodied in a sacred text — in fact, Strauss contends, we have a common-law legal system “built not on an authoritative, foundational . . . text,” but out of “precedents and traditions that accumulate over time” and serve as a constraint on “transient public opinion.” To some extent, Strauss is right. Day to day the courts view (and configure) the facts and issues of a case in the light of previously established “landmark” decisions; the words of the Constitution are often not invoked. At least descriptively, the history of constitutional interpretation would seem to proceed as Strauss says it does, by a process of “evolutionary accretion” and not by an act of fidelity to an original intention, that is, to an intelligent design.