Orin Kerr I think sums it up nicely over at Volokh, as to why it’s going to be very difficult to get justices to revive key constitutional principles because they are more academically correct:
My point is only that itâ€™s the system the Constitution gave us. The Framers bestowed responsibility upon politicians for nominating and confirming Justices, and that choice means that the Justices weâ€™re likely to get are likely to be more practical people than constitutional theorists. So if youâ€™re disappointed that the Justices are not committed enough to constitutional first principles, it is of course fair to criticize the individual Justices, and the broader legal culture. But I think at least part of your criticism should be directed to the Framers for giving responsibility to politicians for who ends up a Justice.
It’s often heard that the founders intended to put certain rights beyond the political process when they enacted the Bill of Rights. But really, all rights are subject to politics over the long haul. The genius in our system is that it takes a sustained shift in constitutional thinking, over a long period of time, in order for new ideas and interpretations to work their way into our courts. Perhaps someday, if the population is committed to electing politicians that demand justices right what was wrong, we’ll get Privileges or Immunities restored to its rightful place, but not now.
Ultimately our rights are subject to the political process. That might not be ideal in abstract theory, when in practical implementation of a government, I’m not sure how you make a system that works better than what we have now. Ultimately the Second Amendment and Fourteenth Amendment are fading ink on pieces of parchment. At the end of the day, what those word mean as a matter of law is entirely up to we the people.
One thought on “Quote of the Day: Privileges or Immunities Edition”
I donâ€™t know what alternative system for appointing judges that Kerr would like but it would be even less accountable than what the founders created. At least the people can vote the bums out of office if they donâ€™t like the judges they appoint. If the judges were appointed by law professors the people would have no say at all.
Most of the time the people have no interest and donâ€™t pay attention in sufficient numbers to do anything about it. But at least on those few occasions when the people decide to care and to pay attention, they can change the landscape.
Next November may just be one of those times.
Comments are closed.