POUNDING THE TABLE: Yale Law Prof. Jack Balkin on San Francisco

[Eve snarks: I'm reminded of that well-known lawyer's maxim: "When the law is against you, argue the facts. When the facts are against you, argue the law. When the law and the facts are against you... it's time for a 'Constitutional moment.'"]

How Constitutional Meanings Change

Not by courts, but through political action. Courts are often the last to get involved.

What is remarkable about Mayor Daley's recent statement that he would have "no problem" with the Cook County clerk issuing same sex marriage licenses is that a number of prominent politicians are now standing up and saying that this is what fairness and equality means. Such statements in the context of larger social movement activism are quite important in reshaping public opinion, and, in turn, reshaping constitutional norms.

It's important to understand that politicians can do this for good or for ill, in ways we like and in ways we don't like. The Civil Rights Movement and the Civil Rights Act of 1964 reshaped the meaning of the Equal Protection Clause, but so too did massive resistance in the South, George Wallace standing in the school house door, and Richard Nixon's running against busing and in favor of "law and order" in the 1968 election. The point is not that politicians always do good when they promote constitutional norms through political action. The point is that the meaning of the Constitution is driven and produced by political activism, and later confirmed by judicial decision. People often complain that courts are writing their political beliefs into the Constitution. But if we look at the way the system actually works, its not just the courts, or even primarily the courts. It's all of us. This is the most important lesson about how constitutional change actually occurs.

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posted by Eve at 4:39 PM | link

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