Jack, thanks for your thoughtful post on the drawbacks of living constitutionalism. I don’t imagine you really believe that the version of living constitutionalism you’ve unspooled – if it’s living constitutionalism at all – is one I’d embrace. That’s judicial tyranny. My objection in Heller was not to “political and social movement guided constitutional development” but to political and social movement dominated constitutional development as the courts snoozed. I don’t imagine anyone genuinely believes the courts could or would ignore political forces.
I’m actually rather fond of the unwashed masses. But what I didn’t see happening in Heller was the kind of serious constitutional conversation between the unwashed and the courts that we both favor. What I did see was the individual right to bear arms “arise full blown” from the head of Chief Justice John Roberts.
It’s not clear to me that we differ about “living constitutionalism” at all. Both originalists and living constitutionalists can embrace judicial restraint. I simply think the constitution has real meaning, and that courts play a role beyond merely carrying water for
special interest groups
social forces. That’s why I am most looking forward to your answer to the question Eric and I posed earlier this week. If it’s really all just politics, why do we need constitutional courts at all?