Balkin on the Living Constitution

Slate is breaking out the big guns for its series on the status of the Living Constitution, starting with Professor Jack Balkin.  His essay is strong stuff, but since reading it earlier this week, some elements have been bothering me.  I finally figured out what they are.

First, as Orin Kerr has already pointed out, the piece is more of an argument against originalism than it is an argument for living constitutionalism.

Second, Professor Balkin seems to conflate originalists with originalism, and argues that because today's originalists (most notably Scalia and Thomas on issues like affirmative action, Bush v. Gore, and the New Deal) sometimes betray originalism, originalism must be unworkable.  It is certainly fair game to attack Scalia, Thomas, and others for displaying hypocrisy; but it is another thing altogether to declare that hypocrisy of some (or even most or all) shows that originalism itself is bankrupt and without force.

Finally, let me turn to Balkin's strongest argument:

And that brings us to the real secret of why we have a living Constitution. In the long run, the Supreme Court has helped secure greater protection for civil rights and civil liberties not because judges are smarter or nobler, but because the American people have demanded it. When social movements like the civil rights movement or the feminist movement convince the center of the country that their claims are just, the court usually comes around. Sometimes it gets ahead of the center of public opinion, and sometimes it's a bit behind. But in the long run it reflects the national mood about the basic rights Americans believe they deserve. The great engine of constitutional evolution has not been judges who think they know better than the American people. It has been the evolving views of the American people themselves about what rights and liberties they regard as most important to them.

Rather than a set of shackles designed by long-dead slave-owners, the framers bequeathed to us a Constitution that could adapt to the needs and aspirations of each succeeding generation. Their faith in the possibilities of the future, and our enterprise in realizing that future, have made us the great and free nation we are today.

This strikes me as more of a defense against the attack that the Court is radical than an argument in favor of the Court's applying living constitutionalism.  If the Supreme Court usually reflects public opinion--sometimes just ahead of the curve, and sometimes just a bit behind--then why do we need the Court to speak on these issues?  Why can't the democratic processes (including the amendment procedure) adequately reflect public opinion?  One imagines that were the Court to roll back the New Deal under the banner of originalism, The People might have something to say about that.  Let them.

I know, I know.  There are all kinds of constraints on real life democracy.  And at times, the Court must step in where those constraints prevent The People from expressing their will.  But it simply cannot be argued that all constitutional decisions made under the Living Constitution theory were made to remove constraints on democracy.

Note that I'm not arguing originalism is right.  Instead, I'm just asking why "The People want it this way" today is an argument in favor of living constitutionalism.

I'd argue that The People expect and demand a measure of living constitutionalism today because We are used to having it that way.  It may be, then, as a practical matter that we can't do without the Living Constitution; but it is only because we have created a culture wherein we turn to the Court to address our problems.  That's not much of a philosophical case in favor of Brennan's Living Constitution.