The Zen of living constitutionalism (another response to Jack)

[Dahlia Lithwick]

Jack I am well aware that wading into a constitutional tussle with Jack Balkin is a lot like going hunting with Dick Cheney but I want to push back a little on your “living constitution” post . First, thanks for the kind words. Second, to the extent you’re arguing that “living constitution” just means “things change” I can’t disagree. I think the original spokesman for this constitutional worldview was probably the Buddha.  

But when I argued this week against the way the gun lobby came to dominate/shape the constitutional conversation over the second amendment, I wasn’t arguing for a dead constitution. I was wondering out loud where the best locus of constitutional change might be. I just can’t quite accept your premise – or what I think is your premise – that since the constitution changes, and indeed the court changes, it makes little difference which political forces drive those changes.

If you really mean it that “social movements” will carry the day whether or not the court intercedes, it does raise the question of why we bother with courts in the first place. I think this is at least part of what Eric means when he writes that “the constitution, in practice … is political but not the same as ordinary politics.”

So while I admire the Zen-like commitment to letting the political systems work it out over time, I am not quite sold. As Deborah observes , when the court is simultaneously finding new fundamental rights and curling its lip over the very idea of levels of scrutiny, living constuitutionalism has become unmoored from any constraint at all.