Legal Commentary

Now, as a unreconstructed liberal (I'll show you pictures of my bleeding heart), I don't particularly like this result. But it follows sufficiently strongly from other commitments I have about the Constitution that I must accept it.

That's how I come out on the case, but of course, none of the Justices is likely to reason the way I do. So what do I think of their approaches and rationalizations, which were vividly on display at yesterday morning's oral argument?

It's very easy to make fun of the Justices both liberal and conservative in their attempts to grapple with this case. Indeed, it is pretty obvious that, faced with a case of virtually first impression, with almost no precedents to work with (and the only significant precedent, Miller, easily distinguished) they are being pulled to conclusions by their political priors. The conservatives have dropped all pretense of judicial restraint and federalism, and the liberals have suddenly been reading from Felix Frankfurter's hymnal (which is a pretty good trick, considering that he was a secular Jew).

This troubles me far less than perhaps it should, because it is pretty much par for the course on every contested social issue that comes before the Court.

I am not shocked, shocked, that gambling is going on here.

In fact, the 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.

If you don't like the result in Heller, it's because you don't like a country dominated by political conservatives who have influenced political culture for the past generation, and who have sufficient political clout that they have been able to staff most of the federal judiciary and a majority of the positions on the Supreme Court.

Living constitutionalists like me can make fun of the Supreme Court all they like, and believe me, I'm happy to throw in my share of zingers. But we should recognize that we are making fun of the same forces that produce decisions that keep the Constitution in line with changing attitudes. In this particular case, they are changing attitudes that most liberals like myself do not like. Well, that's constitutional politics. If you don't like the living Constitution you get, you really should be working harder to get the national politics you like, because that's pretty much how the Constitution changes over time. Living constitutionalism isn't just a set of positions about interpretation, it's a process of argument and persuasion that gets worked out in politics and is eventually reflected in law. The engines of living constitutionalism gave us Lawrence, now they give us Heller; that is how the game is played. As they say about those Powerball jackpots, you can't win if you don't play.

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