« Rappaport on Stevens | Main | Philadelphia Police & PETA Protests »
Thursday, August 25, 2005
It's Alive!
Dahlia Lithwick has just published her summary of the replies to her question, highlighted here by moi, Is the living Constitution dead?
As it happens, my contribution did not make the final cut. So here it is for you, dear readers. Think of it as an exclusive perk for prawfsblawg readers: content not available anywhere else on the web!
I'm not sure the arm's-length at which liberals now hold the Living Constitution is due so much to embarrassment as to a strategic reassessment.See, the trouble with the Living Constitution is that both sides can play that game.Liberals look at conservative 11th Amendment jurisprudence (which is decidedly not textualist), Scalia's take on affirmative action (which is hardly originalist), and the majority and concurring opinions in Bush v. Gore (which is difficult to square with odes to federalism, minimalism, and originalism), and wonder whether it makes more sense to place some obvious constraints on judges.Liberals look at the conservative backlash to Roe v. Wade and see that contemporary politics is now organized along the NARAL/Family Research Council axis and wonder whether a little democratic populism and judicial minimalism might be a good thing.Indeed, taking a broader view of this country's history, it is not clear that we can expect courts to be out in front on progressive values and causes through the march of time. And, putting aside that history, it is even less clear why anyone would think that a bunch of graying and balding lawyers who answer to no one--no matter how good and well-meaning they are--would be.(Lawyerly caveat: There are times when a Living Constitution would be nice. . . .)
Now tell me, are you surprised?
(Oh, and now she asks for submissions arguing that the Living Constitution, if it is alive, should be executed.)
Posted by Hillel Levin on August 25, 2005 at 06:34 PM in Hillel Levin | Permalink
TrackBack
TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d8341c6a7953ef00d83454340853ef
Listed below are links to weblogs that reference It's Alive!:
Comments
Perhaps the problem is simply that the living constitution simply isn't what the adherents of that viewpoint like to call their judicial philosophy? While originalists are happy (eager, even) to accept that label, the living constitution is usually a term of abuse hurled by Scalia and co. (I'm part of that co., granted; as mentioned on Volokh, I'm now flirting with the idea of getting a "480 U.S. 321, 323" tattoo), but I've never heard anyone who adheres to the living constitution call themselves a living constitutionalist. Justice Breyer, for example, did not call his new book "The Living Constitution: the Lesser Evil". If so, it should be no surprise that there are less papers filed in support than against.
Maybe this is just ignorance on my part, but does ANYONE call themselves a living constitutionalist? I don't mean that in the perjorative sense of "does anyone admit to it", but is there anyone who uses that term in a positive sense?
Posted by: Simon | Aug 26, 2005 5:55:59 PM
The comments to this entry are closed.