Academic

Balkin on Heller

By Lawrence Solum

Jack Balkin has a post entitled Liberals Make Fun of the Living Constitution on Balkinization. Here is a taste:

[T]he likely result in this case is a pretty good example of how living constitutionalism works in practice. The Supreme Court is a multi-member body whose decisions in close cases tend to be resolved by the median or swing justices, whose identity (and position at the median), in turn, is produced by successive judicial appointments. Meanwhile social movements, interest groups, and political parties vie with each other to influence popular beliefs about the Constitution. Partisan entrenchment plus social movements plus shifting popular attitudes and shifts in constitutional culture eventually get reflected in judicial decisionmaking using vague texts. (Dahlia has complained that this is what you get when the court doesn't intervene for long periods of time-- social movements, or what she prefers to call "special interest groups" take over. Actually, this is what you get whether or not the Court intervenes for long periods of time. We could tell much the same story with reproductive rights, or the women's movement, or the gay rights movement. It would simply involve interest groups-- now more generously called "social movements"-- that Dahlia and I like better.).

The same forces that produced (what I regard) as the likely result in Heller produced Lawrence v. Texas and every other case that liberals like myself admire. Indeed, the very same weather vane, Anthony Kennedy, will be the deciding vote.

These forces produce constitutional doctrine that stays roughly in sync with the vector sum of forces in the national political coalition. If the court gets too far out of line, it will eventually correct itself through new appointments and new decisions.

Check it out!

Full post as published by Legal Theory Blog on March 19, 2008 (boomark / email).