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Legal Commentary

: Balkinization

The drawbacks of living constitutionalism? Perish the thought!

By Jack M. Balkin

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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.

Full post as published by Balkinization on March 21, 2008 (boomark / email).