Friday, May 23, 2003


Two Sobering Thoughts

Two things happened yesterday that gave me a start. The first was an e-mail from Jim Ryan, a visiting Professor from the University of Virginia. As I mentioned in a previous post, Jim and I were walking right outside the Yale Law School on Wall Street when the bomb exploded on Wednesday. A few minutes before that, we were talking over whether to go outside for coffee (it was drizzling) or go downstairs to dining hall to see if it was still open. I said I didn't mind the rain, so we went outdoors. Jim pointed out that if we had decided to go to the dining hall, we would have gone down the main staircase and past Room 120 just as the bomb went off.

I'll bet there are at least a hundred people at the Law School who had close calls of that sort, probably much closer calls than that. A few feet more down the main hallway, a decision to go left rather than right, all of those contingencies might have made the difference between safety and injury. As a community, we were incredibly lucky. Somebody up there must have been watching out for us.

The second start came when a group of agents from the FBI and ATF came to my house Thursday evening. This was my second interview of the day. They were utterly professional and polite. They did their jobs incredibly well. But the first words out of their mouths threw me for a loop.

"Professor, we'd like to ask you about some of your writings....."

For a second, just for a second, I thought: "Oh my God, John Ashcroft has finally sent them to round me up for all those anti-Bush op-eds I've written."

And sure enough, one of the agents put a folder on the table in front of me containing a copy of all my recent op-eds, downloaded from the Internet and neatly printed out.

It quickly became clear what was going on. They wanted to know if anything I had written might have enraged someone enough that the person might consider taking his or her frustrations out on the Law School. They asked me which of my recent op-eds had gotten the most virulent responses. They didn't seem to know about my blog, or indeed, about blogs in general (although perhaps they were just playing possum). I explained what a blog is and how it changes the audience for political writing, how the Internet changes the group of people who can react to what you are saying. They asked for an example, and I mentioned how one of my op-eds criticizing Bush had been picked up by the conservative site NewsMax and distributed to their readers by e-mail and on the Web as part of a special "Insider's Report." The idea, apparently, was to stoke up some resentment at what NewsMax called the "most demonic form" of the liberal academy, an "Elitist Yale Law Professor." That NewsMax story ends, by the way, with the following lovely quote:

Balkin's commentary reveals what we at NewsMax believe, that the real enemy is not from without. These evil folks have always been and always will be. The real enemy is within. Welcome to American academia.

I told the FBI and ATF agents that although I'd received plenty of hate mail, I had never gotten any death threats or threats against the school. Just a lot of letters and e-mails from people who really, really didn't like what I had to say. They showed me a couple of composite sketches and asked if I recognized them. (I didn't). Then we talked about possible theories of who would want to bomb the school and why. After about thirty or forty minutes, we shook hands, I wished them good luck, and they left.

They were just checking out possible leads, possible theories of the case. That's their job. And for that reason the agents had to ask me about what I'd written, and what people might have thought about it. But I came away from the interview very depressed. I very much didn't want to believe in this particular theory of the case-- the idea that some nut job attacked the school and endangered its students because he or she didn't like the political beliefs of some of its professors. There are a hundred other reasons, I've told myself, why that bomb could have been set off. It will turn out to be one of them, I know.

Above all, I don't want to believe it because it would just be too depressing if it were true.


Balkinization goes XML

I've installed an RSS 0.92 compatible link at the end of the blogroll. You may aggregate away.

Thanks to Derek Slater and Rebecca Tushnet both for the suggestion and for explaining how to do it.

Thursday, May 22, 2003


More on the Explosion at Yale Law School

It is looking more and more likely that the explosion was caused by a bomb. The FBI, Homeland Security, ATF, as well as state and local law enforcement agencies are coordinating investigations, interviewing everyone who was in the building that day.

The damage to Room 120 and the Alumni Reading Room was extensive. Debris fell down the staircase from the Alumni Reading Room leading down to the International Law Library and Rare Book Collection. A pipe burst, pouring water on many of the rare books. Some of them can be restored, others may not be.

The law school community is a bit shaken but still in good spirits, because all of us know that we were very very lucky-- there were no injuries. If someone had been killed in this explosion, the mood here would be very different. Graduation will go on as scheduled, and we will not move over to the gymnasium. The graduation will take place in the courtyard, in the very heart of the Law School.

One amusing anecdote in an otherwise somber day: The wall between Room 120 and the Alumni Reading Room collapsed. Several portraits hanging in the Alumni Reading Room fell off that wall. My sources tell me that Bob Bork's, Pat Wald's,and former Dean Abe Goldstein's portraits were damaged, but Eleanor Holmes Norton is still up on what remains of the wall. The portrait of Guido Calabresi, former dean and now a judge on the Second Circuit, was also on that wall. Dean Tony Kronman reported that when he came in to inspect the damage, the portrait had somehow done a 270 degree flip and landed on its back, face up, completely undamaged.

That's Guido for you.

And that's the Yale Law School too. You can try to bomb us, but we will just do a backflip and come up good as new.

Wednesday, May 21, 2003


Explosion at Yale Law School

I was walking out of the Law School building about a quarter of five in the afternoon with Jim Ryan to get some coffee when we both heard a big explosion from the Yale Law School building. A few minutes later, the entire Yale Law School community was walking down York street. Apparently an explosion occured in Room 120 on the first floor. Several students reported seeing a fireball in the main hallway that connects the various classrooms. Others reported that the wall in the Alumni reading room next to room 120 was destroyed.

The Law School has been cordoned off, and police have surrounded the area. I'm told the FBI has been called in. It's still not clear if this is an accident (an exploding pipe) or a crime scene (a bomb).

As of yet, there are no reports of injuries, but we don't know if anyone was in Room 120 when the explosion occured. This week is part of exam period and I don't know if students were working there.

I'm very worried about my students.

UPDATE: So far there are no reports of injuries, thank goodness. The building is closed off at least through Friday. (Graduation is Monday, but I assume we will move over to the gymnasium, as we have in the past when there's rain). Speculation is running rampant as to the cause of the explosion. We still don't know if it was a bomb or an exploding pipe. At the 6:30pm news conference Mayor DeStefano said he thought it was an "explosive device" (which, I assume, is a fancy name for a bomb). But we really won't know for some time.

Sunday, May 18, 2003


Good Judging and "Following the Rules Laid Down," Part II

In my previous post on Larry Solum's theory of good judging, I pointed out that although Larry can justify following previous precedents that are inconsistent with his theory, he can't justify courts deciding those cases in the first place. The example I gave was the Burger Court's sex equality cases of the 1970s, which, I argued, were good decisions that Americans should, on the whole, be proud of. If Larry's theory can't account for the legitimacy of such decisions, I suggested, it is probably too narrow a conception of the judicial role.

In response, Larry adopts a strategy of confession and avoidance:

So I really have to bite the bullet. As Balkin recognizes, I am forced into the following position. Although the Supreme Court's gender equality jurisprudence is binding precedent and should continue to be followed by both the Supreme Court and the lower courts, those decisions were badly reasoned and gave insufficient weight to contrary precedent. Now, Balkin is right when he assumes that I "would agree that women should not be subjected to discrimination by the states or the federal government." So how can I possible think that decisions which lead to a result of which I approve are incorrect as a matter of law? Haven't I contradicted myself? Well, no. In fact, obviously not. Why not? Because judicial fiat is not the only way to change the law. Law can be changed by amending statutes, promulgating regulations, and even in some cases, by amending the constitution. If the Supreme Court had taken the steam out of the political movement, the Equal Rights Amendment might now be law. Even with the Supreme Court's gender equality jurisprudence, both Congress and state legislatures have enacted a wide variety of important gender equality legislation. And it is not clear the polities without our institution of judicial review (the United Kingdom, Denmark, etc.) have lagged behind the United States in achieving gender equality.

It follows from this that Larry does not, in fact, think that the states and the federal government should be *constitutionally* prohibited from discriminating on the basis of sex. He believes that sex inequality is wrong, but that it should be up to individual states, and to the U.S. Congress to pass laws and issue regulations prohibiting sex discrimination. But I think this misses the point at issue: Should the principle of sex equality be part of our basic law, our fundamental rights, so that one does not have to get legislation passed in order to secure basic rights for women? One might well have said the same thing in Brown v. Board of Education: let each state decide whether it wants to keep Jim Crow or abolish it; let Congress decide whether it wants to ban segregation in the D.C. schools, or not, and so on. I guess one could take that position with respect to almost every important civil right that doesn't fall within Larry's neoformalist vision of judging. But my point is that if so, this seems to me at least, to be a serious criticism of his position. I don't think it would be sufficient to leave the question of sex equality, or race equality, for that matter, to the tender mercies of indvidual states.

Larry notes in passing that "If the Supreme Court had taken the steam out of the political movement, the Equal Rights Amendment might now be law." Well, I think there is much to be said for that view, although there is some evidence going in the other direction. But I assume that Larry would agree that this does not justify the Court's 1970's sex equality jurisprudence, at least for a formalist. It might for someone like me, or like Justice White (both of us are strongly legal realist in our orientation, as you may have guessed) but the point of being a formalist is that if you don't play by the rules, you don't get the result you are seeking. Article V of the Cconstitution says that it takes three quarters of the states to change the Constitution, not three quarters less three.

But I digress. Larry may well think that he can bite the bullet on the sex equality question. But the sex equality example was only one example. What Larry does not sufficiently recognize, I think, is that the number of Supreme Court decisions that are not consistent with his model of neoformalist judging are plentiful. Indeed, I would venture to say that there is hardly an area of contemporary civil rights law in which the key precedents protecting civil rights and civil liberties were originally developed consistent with Larry's formula for good judging. Rather, the history of progress in civil rights in this country is the history of courts artfully dodging and sometimes overruling previous precedents, and creatively crafting new doctrinal structures in their stead, often with nary a concern for "plain meaning," structure, or original understanding. The list of cases that were decided in ways inconsistent with Larry's rather narrow conception of good judging is so long that I can't even begin to list them all, but here's a partial sample: the basic doctrines of the scope of free expression, the rule of strict scrutiny for content based regulations, the rule of Brandenburg v. Ohio protecting seditious libel, the contemporary protection of blasphemy and indecency, the public forum doctrine, the rule of New York Times v. Sullivan, the doctrine of freedom of association, the doctrines prohibiting unconstitutional conditions on speech, the constitutional recognition of picketing as a form of protected expression, and that's just the first amendment doctrines that come readily to mind.

But let's move on: We would also have to include almost all of the Supreme Court's criminal procedure jurisprudence and its application to the state governments, the rule of Gideon v. Wainwright, the rule of Shapiro v. Thompson, the fundamental right to marry recognized in Zablocki v. Redhail and Loving v. Virginia, the right to procreation recognized in Skinner v. Oklahoma, Griswold v. Connecticut and Eisenstadt v. Baird, the requirement of a hearing in adminstrative decisionmaking in Roth and its progeny, the application of equal protection clause to aliens, to illegimate children, to the mentally retarded, not to mention women, the application of the Equal Protection clause to voting in Baker v. Carr and its progeny, (including the equal protection holding in Bush v. Gore, don't forget!), the discovery of an "equal protection component" in the Fifth Amendment's Due Process clause so that the Federal Government could not discriminate on the basis of race in Bolling v. Sharpe, or on the basis of sex in Frontiero v. Richardson.

But wait, there's more: Quite apart from the ways courts have innovated in the area of civil rights and civil liberties, they have also innovated consistently in the scope of national powers. So to the list we must add the current constitutional powers of Congress to pass regulatory legislation under the commerce clause beginning with Darby and Wickard and their progeny, which include, by the way, the power of Congress to pass the Civil Rights Act of 1964 and much other subsequent civil rights legislation. to This we must add the doctrines authorizing the administratiive state, the power of Congress to delegate legislative and judicial authority to administrative agencies, and the power of Congress to create independent federal agencies like the FCC or, more importantly, the Federal Reserve, which keeps the money supply out of everyday political contestation. (Can you say "Cross of Gold speech?" I knew you could.) Oh, and by the way, The Legal Tender Cases, which authorized Congress to print paper money as legal tender? Not a particularly good example of neoformalist judging. I'm afraid those greenbacks will have to go.

My point is that cases like the sex equality decisions of the 1970s are not the exception. They are the rule. If we took seriously Larry's view that he would have to bite the bullet in all cases where the Supreme Court's decisions were inconsistent with his vision of neoformalist judging, then I'm afraid that he would have delegitimated a very sizeable chunk of the corpus of contemporary constitutional law, or at least the portions that I regularly teach in my courses and discuss in my casebook. All of this stuff should never have been decided. In other words, if Larry is willing to bite the bullet on cases that are inconsistent with his narrow conception of appropriate judging, he will be biting bullets for a very, very long time.

But it gets even worse. For Larry's response to the sex equality cases is that Congress and the states could just pass legislation protecting women's civil rights. But my point is that the Supreme Court has not simply engaged in what Larry would regard as creative legal interpretation in cases limiting government power. It has also creatively interpreted and expanded the scope of Congressional power as well. That is what the New Deal Revolution was all about. And indeed, it is quite likely that if the Court had just followed his neoformalist formula for good judging, Congress would be constitutionally prohibited from passing much of the very civil rights and civil liberties protections that he wishes to fall back on, and administrative agencies would not be able to pass all those regulations that Larry argued would pick up the slack in enforcing equality norms. Certainly the Civil Rights Act of 1964 is not consistent with 19th century precedents or 19th century understandings of federal power. I'm afraid that what Larry is committing us to is a Constitution without a very large proportion of the features that we today take for granted as its greatest strengths and its greatest achievements.

If I am correct about all this, then there is an enormous irony to Larry's theory. For despite all of these criticisms, Larry can in fact have his cake and eat it too. He can point out that judges should follow the sex equality cases, the cases broadening the scope of Congressional power, the cases legitimating the administrative state indeed, the whole panoply of cases that I have just pointed to, because they are *already decided,* and judges must follow stare decisis. But here is the irony: The only reason that these things are law now, and that judges must follow them, is because other judges in the past who Larry thinks didn't know how to do their jobs properly violated their oaths of office and inserted these travesties into constitutional law. So Larry's theory commits him to the following paradoxical position: He doesn't have to defend a deeply unjust and unworkable constitutional scheme because other judges in the past didn't follow his advice about what constitutes good judging and inappropriately mixed law and politics in the very ways he accuses me of. And that paradox, I think, suggests that there is something deeply wrong about his theory of judging. He is like a man who is living off the proceeds of stolen goods.

Now, there's another very important side to Larry's post, and it has to do with he thinks are my own views about judging in constitutional cases. Larry thinks that what I am advocating is simple lawlessness, that I am saying that ultimately it's all politics. He is mistaken about this, and he misreads me in large part because he has too narrow a view of what *legal* argument is. I must confess I don't recognize his theory of neoformalist judging in the actual practices of lawyers and judges in America. My view of legal argument is simply more flexible than his, that's why he jumps incorrectly to the conclusion that I think it's all just politics. But I think that history of the practice one is arguing about counts for something. And the more one studies the actual history of the practices of legal argument about the U.S. Constitution, and the ways in which our Constitutional law has actually developed, the more one discovers that these practices are much much more flexible that Larry's model of good judging permits. A theory of judging that renders so much of the history of the practice it is trying to account for as illegitimate just can't be correct. But that discussion will have to wait for another post.


Good Judging and "Following the Rules Laid Down."

Matthew Yglesias agrees with Larry Solum about the following views of good judging:

Judges should be trying, as best they can, to figure out what the constitution means as law. That means that first and foremost judges should follow the rules laid down. Even the Supreme Court should regard its own precedents as binding, unless there is a compelling reason to do otherwise. We've been speaking mostly of constitutional law, so I will limit myself to that topic by way of illustration. When the precedents run out, judges should look to the plain meaning of the constitutional text. When the text of a particular provision is ambiguous, judges should look to other provisions and then to the structure of the Constitution as a whole. And if ambiguity persists, judges should make a good faith effort to determine the original meaning. And when ambiguity persists, then judges should resort to general default rules that minimize their own discretion and maximize the predictability and certainty of the law.

This sounds like a nice algorithm for judicial decisionmaking, but I can't sign on to it. It seems to me insufficiently attentive to the historical realties that shape American constitutional development, and more to the point, it gives no account of the sort of judging that, in hindsight, we are most proud of as Americans.

Before I begin, I should note that there's something odd about Larry's formula for good judging. It's not at all clear to me why precedent trumps "plain meaning," why both of these trump structural considerations, and why all of them together trump original understandings. If there's an argument here, I don't see what it is. As Larry probably knows, Philip Bobbitt (and Dick Fallon) have argued fairly persuasively that this sort of lexical preference for some modalities of constitutional interpretation over others is unworkable. But I digress.

Let me take a simple example. I assume for purposes of discussion that Larry (and Matthew, for that matter) would agree that women should not be subjected to discrimination by the states or the federal government. In fact, the line of sex equality decisions that begins with Reed v. Reed in 1971 is something that I think most federal judicial nominees would be expected to agree with; or to put it another way, any judicial nominees who forthrightly stated that sex discrimination was constitutional would likely never be confirmed. I would go further: these precedents are something that we can and should be proud of; they demonstrate that we have become a freer, more equal, more tolerant, and more democratic society than we were before. To me they are not examples of bad judging, but examples of good judging, and if a theory of judging is inconsistent with them, I think that is a reason to be suspicious of the theory.

Now one can easily justify following these cases today because they are precedents. But the question I want to ask is whether the cases were originally correctly decided in the first place. That is, could someone who holds the views that Larry does about good judging consistently come out the "right" way on the sex discrimination issue? Frankly, I don't think it's possible. I don't think one can make a serious case that the 1970's sex discrimination cases are consistent with Larry's notion of what good judging is, at least if the point of good judging is to "follow the rules laid down." The precedents, in fact, were pretty clear: they all pointed in the opposite direction. The Court had decided in cases like Goesart and Hoyt that women were not entitled to be free from sex discrimination except in cases of voting covered by the Ninteenth Amendment. All other discrimination against women was to be subject to rational basis scrutiny, which means that almost all of it was to be upheld. Indeed, the key case that ushers in the 1937 revolution (don't get me started on whether *that* is consistent with previous precedents), West Coast Hotel v. Parrish, involved a Washington law that required minimum wages for women workers but not male workers. That is clearly sex discrimination, and the Court thought nothing of it. (Note that this is not a mere oversight. Adkins v. Children's Hospital, the case that West Coast Hotel overruled in 1937, emphasized the equal ability of men and women to make economic decisions as a reason for striking down a similar minimum wage law).

Reed v. Reed, to be sure, does make obeisance to the rational basis standard, but it applies it very differently from other rational basis cases in the post-1937 period, and it is generally understood to have been a disguised form of heightened scrutiny that was made official in Frontiero v. Richardson and Craig v. Boren. Reed v. Reed just can't be understood as "following the rules laid down," and certainly the next two cases can't.

My point is that if one just followed the "rules laid down," (Larry's interpretation of this phrase, not mine, I should add) you would never get to modern sex equality doctrine. Morever, because the "rules laid down" are clear, according to Larry's formula, you would never go on to ask about the "plain meaning" of the text, structure, and original understanding. However, let's go through the exercise just for fun.

Does the plain meaning of the equal protection clause mean that sex discrimination is unconstitutional? Certainly very few people thought so before 1970. I guess it all depends on what you mean by "equal protection of the laws," but the difficulty in figuring this out suggests that the words don't have a plain meaning that decides this particular question. (Of course, this raises another problem with Larry's hierarchy, the fact that he elevates the "plain meaning" of the constitutional text over the original understanding of its meaning. I don't see why one would do this. I can understand why one would want to consider textual arguments of all sorts-- including appeals to the larger abstract political principles behind the text-- as superior in many cases to originalist arguments, but that is not the same thing as Larry's suggestion.) In any case, if I were to ask what is the plain meaning of "equal protection," I would have a hard time distinguishing sex discrimination from discrimination against debt adjusters (Ferguson v. Skrupa) or discrimination between opticians and optometrists (Williamson v. Lee Optical). If you throw in a very elaborate political theory, you might get some traction on these questions, but that's not an appeal to "plain meaning," it's an appeal to the best political theory for deciding the case. (Ronald Dworkin, call your answering service please).

OK, well what about constitutional structure? Is there any structural reason to think that sex discrimination is unconstitutional? I'm afraid there's not. The Nineteenth Amendment gives women the right to vote, and they are technically a majority, (not a discrete and insular minority) so presumably they can already vote for candidates who would support women's rights. And the "plain meaning" of the Nineteenth Amendment (there's that phrase again) only extends to voting, not to all of the other forms of sex discrimination that the states and the federal government might impose. (By the way, if you think that there are structural reasons why women are kept in positions of social inequality, bully for you, that makes you an antisubordination theorist, just like me. However, I'm afraid this is not what constitutional scholars mean by "structural argument." Sociological speculation, for most of them, is "policy" analysis, the exact opposite of legal reasoning and following the rules laid down.).

That brings us to original understanding. I'm afraid that the original understanding is not very good for egalitarians generally, because, not to put to fine a point on it, the Framers of the 1787 Constitution (and the Fourteenth Amendment) were, how shall I say, men of their times. The Framers of the Fourteenth Amendment pretty clearly did not wish to alter the common law coverture rules, which meant that married women surrendered virtually all of their rights upon marriage. Moreover, the Framers of the Fourteenth Amendment did not believe that women should have political equality with men-- the right to vote, hold political office, or serve on juries. This is reflected in Section 2 of the 14th Amendment, which specifically refers to male voters. (This was changed by the Nineteenth Amendment, but the basic presumption that sex difference could be reflected in law was not). Furthermore, it's not, as some have speculated, that the question of quality for women was an oversight, that it was an issue that the Framers didn't get around to considering. In fact the suffragists were crying loud and long for equal rights for women at this point in American history. The framers of the Fourteenth Amendment heard their arguments, considered them, and rejected them; they simply didn't think that women should be equal to men in all (or even most) respects. Heck, they didn't think that blacks should be equal in all respects either.

OK, well what about Larry's last category, "general default rules that minimize their own discretion and maximize the predictability and certainty of the law?" I can't imagine this would justify overturning Goesart (decided in 1948) and Hoyt (decided only nine years before Reed, in 1961) and creating a new category of quasi-suspect classifications (Yes, that's what they are called in Supreme Court jurisprudence). If ever there were an example of judicial discretion and judicial activism, the Burger Court's sex equality jurisprudence is it. Indeed, as Justice Powell pointed out, there was a very good reason not to decide these cases: Congress had submitted the ERA to the states, and if the amendment had gone through what the Court did would be superflous. And the fact that the ERA was not ratified suggests that what the Court did was particularly inconsistent with principles of sound judicial restraint.

So it seems that if judges did what Larry wanted them to do, they would never have decided the sex equality cases. My view, by contrast, is that they did the right thing, and that we should be proud of what they did, and that if the Court had not created sex equality jurisprudence in the 1970's courts should do it today. That is to say, I reject the idea that Larry's account of good judging gets anywhere close to what we regard in hindsight as an important and valuable achievement of the Burger Court years. (Indeed, if there is a complaint to make about the Court's sex equality jurisprudence, it is that it was too timid, too doctrinally bound, and that it based itself too closely on previous reasoning about race and classifications based on race rather than recognizing the important differences between forms of racial subordination and sexual inequality.)

Does all of this mean that I don't think that the Supreme Court should decide cases according to law? Of course not. It's simply that I have a much more capacious view about what decision according to law is. It's not just following the rules laid down, and it's not just moving from modality to modality in hierarchical order. Judgment according to law is a matter of, well, judgment. And that judgment, particularly in the big cases, but also in the small ones, inevitably involves considerations of larger political principle, what I have called "high" politics.

The Supreme Court, and the federal courts generally, work in conversation with the political branches, not in isolation from them. Courts change the content of constitutional doctrines in response to social movement contestation and changing social mores. It's pretty clear that decision according to precedent does not explain the sex equality cases. The reasons lie elsewhere: in the Civil Rights Act of 1964 which required sex equality in employment, in the Civil Rights Movement of the 1950's and 1960's, and above all in the second wave of American feminism, which succeeded, in a very short time, in changing most Americans' attitudes about what political equality meant. Under this account, the fact that Congress had passed the ERA and submitted it to the states was a clear signal that the meaning of political equality had changed in the country, and therefore the Court was authorized to overrule its previous precedents and bring the Constitution in line with the times. Indeed, this is exactly what Justice White said to his colleagues in the conference notes on Frontiero v. Richardson. That is to say, although the standard story is that judging is supposed to be independent of politics, nothing could be further from the truth. Judgments of political principle are inextricable from legal interpretation of the Constitution, particularly its abstract generalities like equal protection, due process, and free speech. That is often true of decisions that people despise, but more importantly, it is also true of decisions, that, in retrospect, we regard as the greatest achievements of the courts, decisions that have made our Constitution the charter of liberty and equality worthy of our respect and admiration. Our Constitution is great not because it was great when it left the hands of its Framers; it has become great, and worthy of our admiration, because of what happened to it afterward, because of continuous political struggles over the larger meanings of liberty and equality that were eventually assimilated and codified by courts. That is how a Constitution originally designed to protect aristocratic white male property owners gradually was transformed into a charter of freedom.

The account that Larry offers of good judging is internalist: it tries to identify features of sound legal argument and juridical practice that are isolated from what is happening in the political world outside the courts. I think that every such account of judging is doomed to failure, not because the judicial virtues he identifies are unimportant, but because they are incomplete, and because they don't capture the historical realities of constitutional change in the United States. The more one studies the history of constitutional doctrine, the more one recognizes that the work of judges, although formally independent from politics, is never practically isolated from political contestation about the basic values of American life. That connection, which is sometimes hidden, and sometimes overt, is the by far the most important source of constitutional change, and, if I may say so, of constitutional legitimacy as well.