Balkinization: The drawbacks of living constitutionalism? Perish the thought!

The drawbacks of living constitutionalism? Perish the thought!

Over at Convictions, Dahlia Lithwick has seen something in my previous post on living constitutionalism that I didn't see. I was not writing about the "drawbacks of living constitutionalism," but about how living constitutionalism of the kind she likes actually works.

Dahlia, you seem to think that there is some important difference between the way that political and social movements influenced and interacted with John Roberts and his conservative brethren and the way that they influenced and interacted with Earl Warren and his liberal allies. I'm here to tell you that there are not that many differences, if you put aside who you happen to be rooting for. People said the same things about Earl Warren (and William O. Douglas and William Brennan) that you now are saying about John Roberts, as in: "Where the heck did he get this stuff? Is he just making it all up? Is he just a mouthpiece for the liberal wing of the Democratic Party? He must have been too influenced by those crazy lefties." etc., etc. etc.

Go back and read what people said in the 1950s and 1960s about the work done by courts in this era and you'll find it all very familiar. It sounds just like you. If you like, we can turn back the clock and reverse all those liberal decisions that were done the "wrong way." But frankly, I'd rather not.

One last thing. The notion that "the individual right to bear arms `ar[o]se full blown' from the head of Chief Justice John Roberts" and not out of the text of the Bill of Rights is news to me. I guess you could also say that the right against sex discrimination sprang full blown out of the head of William Brennan or that the right against segregated schools sprang full blown out of the head of Earl Warren. This is not historically accurate in either of those cases, and it's not historically accurate in the case of Roberts. Believe me, I'm not generally in the business of carrying water for our current Chief Justice. But let's give credit where credit is due.

Posted 12:07 PM by JB [link]

Comments:

After lighting the wick, Jack Balkin tears apart the dahlia petal by petal.

# posted by

Mortimer Brezny : 12:42 PM

It's historically inaccurate to a mind blowing extent in this case. Even somebody who was raised in a cave, utterly unexposed to the history, might suspect that a judge reading a phrase like "right of the people" to refer to a right of the people wasn't inventing things out of whole cloth.

# posted by

Brett : 2:42 PM

Jack,

I have to agree with your remarks above. The judiciary has never existed in a black box whose walls are the Constitution and settled law. They live and swim in the social/political sea and the solvent power of that sea has always affected their jurisprudence.

I know this is distressing to those who seek immutable principles and certainty in the law, but that's life in our ramshackle, glued-together system.

Dahlia's point is, if this is so why have a judiciary?

Well, don't let the perfect be the enemy of the good enough.

The judicial culture is quasi-insulated from political/social influences and that's the best we can do for now until such time as we decide to turn the task over to computers.

# posted by

Michael Sweney : 2:44 PM

This Dahlia person must have that secret dictionary given to libs in law school. The one where "the people" is the National Guard and "shall not be infringed" means that folks can't have it.

# posted by

Peter : 9:43 PM

Can I program the computer?

# posted by

M. Simon : 3:39 AM