CONSTITUTIONAL DREAMING: From the Boston Globe

[Yes, we are related--he's my dad. --Eve]

...Many liberals and progressives, who tend to see the Constitution as designed for the very purpose of protecting the rights and liberties of minorities, take it as a given that courts are the only reliable defenders of unpopular rights. As participants at the Yale conference imagined the day when "we'll have our people on the bench," as one put it, a wish list of legal changes emerged: an end to the death penalty and to the disenfranchisement of ex-felons, reductions in sentences of drug offenders, strong defense of the rights of immigrants and foreign nationals, and protection of civil liberties in wartime. Some spoke for more restraints on the executive branch and applauded recent Supreme Court rulings against presidential power to hold "enemy combatants" in detention without trial. ...

Of course, all of this can be easily caricatured by conservatives, with their ready complaints about "legislating from the bench." But while there are certainly those on the left who look for inspiration to court rulings like the Massachusetts Supreme Judicial Court's decision last year on same-sex marriage, there are also those who advocate for a "popular constitutionalism," which seeks to revive the tradition of Jeffersonian democrats and early-20th-century Progressives, who distrusted the power of judges and pushed for legislative victories. In recent years scholars such as Mark Tushnet of Georgetown University and Stanford Law dean Larry D. Kramer have dusted off the argument that, as Felix Frankfurter put it in the 1920s, "the real battles of liberalism are not won in the Supreme Court." ...

While few other scholars go so far as to challenge judicial review, Sunstein does advocate a "judicial minimalism," which he describes as "giving the democratic process wide room to maneuver." After all, he emphasizes, Roosevelt wanted the "second Bill of Rights" to be pushed through Congress, not written into the Constitution itself. And at Yale, Sunstein caused a good deal of grumbling by questioning the legitimacy of Roe v. Wade, and even went so far as to suggest that progressives should stop looking to the Warren Court and Brown v. Board of Education as their model for judicial intervention.

Pamela S. Karlan, a Stanford law professor, was one of several at Yale who found that notion troubling. "There are a lot of things that can't be done through the political system," she said in an interview. In the 1950s, it was impossible to get school desegregation through Congress, she said. "The idea that we would have been better off waiting is, to me, kind of loopy."

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posted by Eve at 2:41 PM | link

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