Originalism class 7: the evolving constitution

We read papers by Bruce Ackerman, David Strauss, and Jeremy Waldron. I was familiar with this work, but rereading these articles after the originalism pieces, it was easier to appreciate Ackerman’s argument that common-law constitutionalism doesn’t come to terms with the role of popular sovereignty in American political culture. Who ever talks about the common law anymore? Or of great common-law judges? But then Ackerman’s “originalism,” according to which public deliberation takes the place of the Article V process, founders on ambiguity as to what counts as an amendment. I tend to think that the justices implement their ideological preferences subject to some real but hard-to-specify institutional constraints about which they are (sometimes) willing to hear argument, above all precedent. If that is common-law constitutionalism, I suppose I’m on board.

But I prefer Waldron’s view that judicial review should be junked altogether, a view that has the happy consequence of making it unnecessary to take an interpretive stance toward the text. Some students thought that under such an approach, rights would no longer be protected, but it is plain that Congress and state legislatures do far more to protect rights than the Court does. Alas, Waldron’s position is as remote from American reality as Mars. For we could add to the four empirical premises of his argument (1–democracy, 2–responsible judiciary, 3–people care about rights, 4–people have good faith disagreements about rights), a fifth: 5–people think courts should resolve those disagreements.