The aspirational constitution

George Washington Law Review

Volumn 77, Issue 5-6, 2009, Pages 1631-1671

  Dorf, Michael C ^a  

^a MIT Sloan School of Management   (United States)

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EID: 70449120358     PISSN: 00168076     EISSN: None     Source Type: Journal    
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References (172)

1. Letter from Thomas Jefferson to James Madison (Sept. 6,1789), in 5 THE WRITINGS OF THOMAS JEFFERSON, 1788-1792, at 121 (G.P. Putnam & Sons ed., 1895) ("Every constitution then, and every law, naturally expires at the end of 19 years," a period during which, according to actuarial tables of the day, half the population turns over.).
2. See, e.g., Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1045-49 (1984) (grappling with "the intertemporal difficulty" posed by constitutionalism).
3. Antonin Scalia, Common Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 40-41 (Amy Gutmann ed., 1997).
4. See Boumediene v. Bush, 128 S. Ct. 2229, 2244 (2008). Justice Kennedy wrote for the Court, stating: The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom. Experience taught, however, that the common-law writ all too often had been insufficient to guard against the abuse of monarchial power. That history counseled the necessity for specific language in the Constitution to secure the writ and ensure its place in our legal system. Id. Those readers who object that Justice Kennedy is not a liberal should feel free to look instead to the similar argument in Justice Brennan's opinion for the Court in Fay v. Noia, 372 U.S. 391, 402 (1963) ("Of course standards of due process have evolved over the centuries. But the nature and purpose of habeas corpus have remained remarkably constant.").
5. See Whitney v. California, 274 U.S. 357, 375-76 (1927) (Brandeis, J., concurring) ("Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means.... Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.").
6. GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM 13 (2004) (listing the near-war with France in 1790, the Civil War, World War I, World War II, the Cold War, and the Vietnam War as the six periods).
7. To put the point slightly differently, the U.S. Constitution "has transformative elements" along with "preservative" elements. CASS R. SUNSTEIN, DESIGNING DEMOCRACY: WHAT CONSTITUTIONS DO 68 (2001).
8. See infra Part III.B.
9. See, e.g., West Virginia v. Barnette, 319 U.S. 624 (1943) (protecting symbolic speech);
10. Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (finding a right to marital privacy in the "penumbras" and "emanations" of specific provisions of the Bill of Rights, made applicable to the states via the Fourteenth Amendment).
11. See John O. McGinnis & Michael B. Rappaport, A Pragmatic Defense of Originalism, 101 Nw. U. L. REV. 383, 385 (2007).
12. See, e.g., Adam Winkler, A Revolution Too Soon: Woman Suffragists and the "Living Constitution," 76 N.Y.U. L. REV. 1456,1463 (2001) ("Living constitutionalism" posits that "fidelity to original constitutional principles means that their scope of application must evolve with the underlying changes in society.").
13. Throughout this Article, I take for granted that views about the justification for constitutional provisions at least have the potential to inform views about their proper interpretation. However, when I say that the antibacksliding view leads naturally to originalism, I do not mean that it necessarily leads to originalism. More broadly, I do not contend that a theory of constitutional legitimacy logically entails any particular theory of interpretation, but only that "certain authority theories are sometimes relevant to interpretive method." Adam M. Samaha, Dead Hand Arguments and Constitutional Interpretation, 108 COLUM. L. REV. 606, 636 (2008). That said, the arguments for connecting antibacksliding to originalism, and for connecting aspirational provisions to living constitutionalism, are sufficiently strong that I am prepared to say that here we have circumstances in which authority theory is relevant to interpretive method. Relevance, to be sure, is not necessarily dispositive relevance. Thus, even for antibacksliding provisions, other considerations might lead us to conclude that, all things considered, originalism is not appropriate, or not appropriate in some contexts.
14. Roe v. Wade, 410 U.S. 113 (1973).
15. See infra Parts II, V.
16. See infra Part V.
17. A fourth answer (which I shall not explore further in the bod/ of this Article in light of my third answer) would treat stare decisis in constitutional law as a form of structural provision that makes up in stability what it sacrifices in majority rule. In this view, adhering to the constitutional decisions of past generations on questions of rights is not different in kind from adhering to past generations' decisions on matters of governance.
18. See ALBERT VENN DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 39-40 (10th ed., Macmillan 1961, reprinted 1965) (1885) ("[T]he Queen, the House of Lords, and the House of Commons... acting together [can] be... described as the 'Queen in Parliament,' and constitute Parliament...[;] Parliament thus defined has... the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.").
19. F. THORNTON MILLER, JURIES AND JUDGES VERSUS THE LAW: VIRGINIA'S PROVINCIAL LEGAL PERSPECTIVE, 1723-1828, at 68 (1994).
20. See, e.g., John C. Coffee, Jr., The Mandatory/Enabling Balance in Corporate Law: An Essay on the Judicial Role, 89 COLUM. L. REV. 1618, 1635 (1989).
21. See SANFORD LEVTNSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) 50-51 (2006).
22. U.S. Census Bureau, State & County QuickFacts, http://quickfacts. census.gov/qfd/index.html (find "State" in drop-down menu, then click "Go") (last visited June 18,2009) (listing, inter alia, 2006 estimates of the populations of California and Wyoming).
23. See generally JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980).
24. U.S. CONST, amend. VIII.
25. For his part, Ely gamely attempts to characterize the Eighth Amendment as a manifestation of the principle of equal protection, because the people who impose punishment and those who suffer it tend to come from different social and economic classes.
26. See ELY, supra note 22, at 97, 173-76.
27. See Dist. of Columbia v. Heller, 128 S. Ct. 2783, 2822 (2008) ("[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.").
28. See, e.g., A MAGYAR KOZTARSASAO ALKOTMANYA art. 59 (Hung.);
29. S. AFR. CONST. 1996 art. 14;
30. C.E. art. 18 (Spain).
31. See, e.g., A MAGYAR KOZTARSASAO ALKOTMANYA art. 54 (Hung.);
32. S. AFR. CONST. 1996 art. 10;
33. C.E. art. 10 (Spain).
34. See ELY, supra note 22, at 98-101.
35. See, e.g., Erwin Chemerinsky, Getting Beyond Formalism in Constitutional Law: Constitutional Theory Matters, 54 OKLA. L. REV. 1, 15 (2001) (observing that the U.S. Constitution embeds and embodies substantive values).
36. THE FEDERALIST NO. 51, at 319 (James Madison) (Clinton Rossiter ed., 1961).
37. See id. at 319-20.
38. THE FEDERAUST NO. 48, at 305 (James Madison) (Clinton Rossiter ed., 1961);
39. See also JACK N. RAKOVE, ORIGINAL MEANINGS 330, 332 (1996).
40. See RAKOVE, supra note 32, at 333-34.
41. See, e.g., New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (holding that "school officials need not obtain a warrant before searching a student who is under their authority.");
42. Hester v. United States, 265 U.S. 57, 58-59 (1924) (establishing the "open fields" exception).
43. See HOMER, THE ODYSSEY 276 (Robert Fagles trans., Penguin Books 1996) ("I told my shipmates,... 'I alone was to hear [the Sirens'] voices,... / but you must bind me with tight chafmg ropes / so I cannot move a muscle, bound to the spot, / erect at the mast-block, lashed by ropes to the mast. / And if I plead, commanding you to set me free, / then lash me faster, rope on pressing rope.'");
44. See also JON ELSTER, ULYSESS UNBOUND: STUDIES IN RATIONALITY, PRECOM-MITMENT, AND CONSTRAINTS 88-174 (2000) (using this metaphor for constitutional commitment).
45. See STONE, supra note 6, at 12-13 (citing restrictions during the near-war with France in the 1790s, the Civil War, World War I and the first red scare that followed it, World War II, the Cold War, and the Vietnam War).
46. See, e.g., Pam Belluck, A Nation Challenged: Civil Liberties;
47. Hue and Murmur over Curbed Rights, N.Y. TIMES, NOV. 17, 2001, at B8 (quoting the present author, who stated that "[t]he traditional way we balance these things is with the maxim, 'It's better that 10 guilty men go free than one innocent man be in jail.' I think people are a little nervous about applying that maxim where the 10 guilty men who are going to go free could have biological weapons.").
48. See Elizabeth Cady Stanton, Declaration of Sentiments and Resolutions, Seneca Falls (July 19,1848), in FEMINISM: THE ESSENTIAL HISTORICAL WRITINGS 76, 77-79 (Miriam Schneir ed., 1972) ("He has never permitted her to exercise her inalienable right to the elective franchise.");
49. See also Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 HARV. L. REV. 947,951 (2002) ("Women began seeking the right to vote under the federal Constitution during the drafting of the Fourteenth Amendment but did not secure recognition of this right until ratification of the Nineteenth Amendment over a half century later.").
50. See Holly J. McCammon et al., How Movements Win: Gendered Opportunity Structures and U.S. Women's Suffrage Movements, 1866 to 1919, 66 AM. SOCIOL. REV. 49, 49 (2001).
51. The Twenty-Fourth Amendment, adopted in 1964, forbids poll taxes but does not speak to property qualifications. U.S. CONST, amend. XXIV, § 1.
52. See Siegel, supra note 38, at 951 (arguing that the framers and opponents of the Nineteenth Amendment viewed the question of women's suffrage as having broad implications for social relations between men and women).
53. See Michael C. Dorf, Equal Protection Incorporation, 88 VA. L. REV. 951, 979 (2002) ("[T]he Constitution's commitments to equality in voting are tied up with and implement its commitment to equality in general.").
54. Frontiero v. Richardson, 411 U.S. 677 (1973).
55. Andrew Johnson, President Johnson's Veto of the Civil Rights Act, 1866, in 6 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 405ff (James D. Richardson ed., 1897), available at http://wps.prenhaU.com/wps/media/objects/ 107/109768/chl6-a2-dl.pdf.
56. See Robert J. Kaczorowski, Congress's Power to Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies the Framers Enacted, 42 HARV. J. ON LEGIS. 187, 269 (2005) (noting that, according to Representative Thaddeus Stevens, "[o]ne of the amendment's purposes... was to prevent a future Congress from repealing the protections afforded to citizens by the Civil Rights Act").
57. See David Herbert Donald, Uniting the Republic, 1860-1877, in 1 THE GREAT REPUBLIC: A HISTORY OF THE AMERICAN PEOPLE 587, 716-21 (4th ed. 1992).
58. Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872).
59. See id. at 71-72.
60. See, e.g., Sweatt v. Painter, 339 U.S. 629, 636 (1950);
61. Strauder v. West Virginia, 100 U.S. 303, 306 (1879).
62. See, e.g., Coppage v. Kansas, 236 U.S. 1, 26 (1915);
63. Lochner v. New York, 198 U.S. 45, 64 (1905);
64. Allgeyer v. Louisiana, 165 U.S. 578, 591-92 (1897).
65. See Herbert Hovenkamp, The Cultural Crises of the Fuller Court, 104 YALE L.J. 2309, 2337-43 (1995) (reviewing OWEN M. FISS, TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910 (1993)).
66. White resistance to the mandate of Brown surfaced in Boston, Detroit and other Northern cities as soon as it became clear that racial segregation was not limited to the South. See, e.g., Milliken v. Bradley, 418 U.S. 717, 721-23 (1974) (resolving remedial issues in litigation over segregation in Detroit).
67. Brown v. Bd. of Educ, 347 U.S. 483 (1954).
68. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2767-68 (2007).
69. For my views on this question, see Michael C. Dorf, A Partial Defense of an Anti-Discrimination Principle, ISSUES IN LEGAL SCHOLARSHIP, Aug. 2002, art. 2, at 5, http://www.bepress.com/ils/iss2/art2.
70. But see Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537, 577 (1982) ("[EJquality is an entirely formal concept... with no substantive content of its own.").
71. See RAKOVE, supra note 32, at 322-23.
72. See Kurt L. Lash & Alicia Harrison, Minority Report: John Marshall and the Defense of the Alien and Sedition Acts, 68 OHIO ST. L.J. 435, 438, 444-52, 458 (2007).
73. Id. at 438;
74. Adrienne Koch & Harry Ammon, The Virginia and Kentucky Resolutions: An Episode in Jefferson's and Madison's Defense of Civil Liberties, 5 WM. & MARY Q. 145, 161 (1948).
75. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856).
76. See id. at 450, 452.
77. See Lamont v. Postmaster Gen., 381 U.S. 301, 305, 307 (1965).
78. See Near v. Minnesota, 283 U.S. 697, 707 (1931) ("[T]he liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.");
79. Fiske v. Kansas, 274 U.S. 380, 387 (1927) (reversing a criminal syndicalism conviction).
80. See, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969);
81. Gitlow v. New York, 268 U.S. 652 (1925);
82. Schenck v. United States, 249 U.S. 47 (1919).
83. See supra Part III.
84. See supra Part III.A.
85. See supra Part III.B.
86. See supra Part III.C.
87. See Dorf, supra note 42, at 967-68;
88. Siegel, supra note 38, at 951-53.
89. See H.R. 5460, 110th Cong. (2008).
90. See, e.g., Dan Eggen, Cheney's Remarks Fuel Torture Debate; Critics Say He Backed Waterboarding, WASH. POST, Oct. 27, 2006, at A9 (reporting view of human rights lawyers that waterboarding is torture).
91. The specific proposal of Congresswoman Eshoo would have covered "orange juice boarding," as it would have defined waterboarding as "any form of physical treatment that simulates drowning or gives the individual who is subjected to it the sensation of drowning." H.R. 5460 § 1(a).
92. S. AFR. CONST. 1996 arts. 26-27, 29.
93. Id. arts. 26-27.
94. For the fullest elaboration of this idea, see LAWRENCE GENE SAOER, JUSTICE IN PLAIN CLOTHES: THE THEORY OF AMERICAN CONSTITUTIONAL PRACTICE 6-7 (2004) (suggesting that "claims for constitutional justice are, in the first instance, the obligation of popular political institutions, not the courts").
95. See MORRIS P. FIORINA ET AL., WHAT CULTURE WAR?: THE MYTH OF A POLARIZED AMERICA (2d ed. 2005) (marshalling data to show that American public opinion is not sharply polarized on most policy questions).
96. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) (pitting the five most conservative Justices against the four most liberal Justices on the question whether the Constitution permits the use of racial classifications by a school district voluntarily seeking to increase the racial integration of its public schools).
97. See id. at 2765, 2800-01 (both Chief Justice Roberts, writing for the Court, and Justice Breyer, writing in dissent, invoke Brown to support their respective positions).
98. See Plessy v. Ferguson, 163 U.S. 537, 548 (1896).
99. President George W. Bush was perceived as trying to shape the Court for years to come by selecting "young" Justices. See, e.g., David Westphal, Supreme Court Nominee: Bush's Pick May Be His Legacy, STAR TRIBUNE (Minneapolis), July 20,2005, at 11A. Yet at the time of their appointments, John Roberts and Samuel Alito were, respectively, fifty and fifty-five years old. See Richard W. Stevenson, Hearings Delayed: Bush Declares His Pick Offers 'Natural Gifts as a Leader,' N.Y. TIMES, Sept. 6, 2006, at Al (noting Roberts's age at time of appointment);
100. Neil A. Lewis & Scott Shane, Bush Picks U.S. Appeals Judge to Take O'Connor's Seat, N.Y. TIMES, Nov. 1, 2005, at Al (noting Alito's age at time of appointment). Clarence Thomas was the youngest recent appointee at the time he joined the Court at the age of forty-three. Even he was quite clearly middle-aged. See Linda Greenhouse, Bush Picks a Wild Card, N.Y. TIMES, Jul. 2, 1991, at Al (noting Thomas's age at time of appointment).
101. Romer v. Evans, 517 U.S. 620, 652 (1996) (Scalia, J., dissenting).
102. See Michael C. Dorf, Does Federal Executive Branch Experience Explain Why Some Republican Supreme Court Justices "Evolve" and Others Don't?, 1 HARV. L. & POL'Y REV. 457 (2007).
103. See, e.g., LAWYERS AND THE RISE OF WESTERN POLITICAL LIBERAUSM: EUROPE AND NORTH AMERICA FROM THE EIGHTEENTH TO TWENTIETH CENTURIES (Terence C. Halliday & Lucien Karpik eds., 1997) (asserting that lawyers are among the most potent agents of global liberal politics).
104. See Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577, 580 (1993) (arguing "that most normative legal scholarship regarding the [supposedly countermajoritarian] role of judicial review rests upon a descriptively inaccurate foundation");
105. Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1, 6 (1996) (arguing "that the Court's capacity to protect minority rights is more limited than most justices or scholars allow"). For a useful collection of citations, see Michael J. Klarman, Brown and Lawrence (and Goodridge), 104 MICH. L. REV. 431, 440 n.68 (2005).
106. FINLEY PETER DUNNE, MR. DOOLEY'S OPINIONS 26 (1901).
107. Of course, one could well have other worries about institutional design, starting with the grossly disproportionate weight that the Senate gives to the votes of residents of small states. See LEVINSON, supra note 20, at 49-62.
108. See, e.g., Payne v. Tennessee, 501 U.S. 808, 828 (1991). For a critical assessment of the Court's claimed practice, see Lee J. Strang & Bryce G. Poole, The Historical (In)Accuracy of the Brandeis Dichotomy: An Assessment of the Two-Tiered Standard of Stare Decisis for Supreme Court Precedents, 86 N.C. L. REV. 969, 969 (2008).
109. See HAROLD J. SPAETH & JEFFREY A. SEGAL, MAJORITY RULE OR MINORITY WILL: ADHERENCE TO PRECEDENT ON THE U.S. SUPREME COURT (1999) [hereinafter SPAETH & SEGAL, MAJORITY RULE];
110. Jeffrey A. Segal and Harold J. Spaeth, The Influence of Stare Decisis on the Votes of United States Supreme Court Justices, 40 AM. J. POL. SCI. 971 (1996) [hereinafter Segal & Spaeth, The Influence of Stare Decisis]. To say that stare decisis has at most a slight direct impact on outcomes in constitutional cases is not to deny that it can have subtler effects. See MICHAEL J. GERHARDT, THE POWER OF PRECEDENT (2008) (applying a multi-factor approach);
111. Jack Knight & Lee Epstein, The Norm o/Stare Decisis, 40 AM. J. POL. SCI. 1018 (1996) (finding some evidence of a norm of precedent-following). For a rejoinder, see Jeffrey A. Segal & Harold J. Spaeth, Norms, Dragons, and Stare Decisis: A Response, 40 AM. J. POL. SCI. 1064, 1064 (1996). It is worth noting that Spaeth and Segal may actually overstate the impact of stare decisis over the long run. Their methodology tests whether Justices who dissented from an initial decision later followed that decision. See SPAETH & SEGAL, MAJORITY RULE, supra, at 23, 35-40. Wholly apart from legal obligations, there may well be strategic reasons why a Justice, who is interested in reciprocal respect for cases in which she is in the majority, would adhere to decisions from which she dissented. See, e.g., Knight & Epstein, supra, at 1021. Yet, even with this factor in play, Spaeth and Segal found that stare decisis played little or no role in how Justices voted. See SPAETH & SEGAL, MAJORITY RULE, supra, at 315;
112. Segal & Spaeth, The Influence of Stare Decisis, supra, at 984-87. Because Justices long dead cannot reciprocate respectful treatment of their precedents, there is even less reason to suspect that a Justice would adhere to stare decisis for much older decisions.
113. See Michael C. Dorf, Whose Ox Is Being Gored? When Attitudinalism Meets Federalism, 21 ST. JOHN'S J. LEGAL COMMENT. 497, 513 (2007).
114. See David A. Strauss, The Irrelevance of Constitutional Amendments, 114 HARV. L. REV. 1457, 1459 (2001).
115. See id. at 1476.
116. See id. at 1476-78.
117. See Thomas B. Colby & Peter J. Smith, Living Originalism, 59 DUKE L.J. (forthcoming 2009) (GWU Law School Public Law Research Paper No. 393, 2008), available at http://ssrn.com/abstract=1090282.
118. Four leading versions are RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY (2004);
119. KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW (1999);
120. Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT. 291, 293 (2007) ("The choice between original meaning and living constitutionalism... is a false choice.");
121. and Lawrence B. Solum, Semantic Originalism 165-74 (Illinois Public Law Research, Paper No. 07-24, 2008), available at http://ssrn.com/abstract=1120244.
122. Dist. of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008) (referring to "meanings... known to ordinary citizens in the founding generation").
123. See1, e.g., id. at 2791 ("The 18th-century meaning [of "Arms"] is no different from the meaning today.").
124. See id. at 2822 ("[I]t is not the role of this Court to pronounce the Second Amendment extinct.").
125. Chapter 9 of Robert Bork's 1990 book, The Tempting of America, is a prime example. One after another, Bork frogmarches Alexander Bickel, John Hart Ely, Laurence Tribe, various other academics, and Justice William Brennan across the pages of his book.
126. See ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 187-221 (1990). Attributing varying degrees of dishonesty and obtuseness to the targets of his critiques, Bork's central claim rests on the originalist premises he defends throughout the book. Bork claims the Constitution is binding law because it was adopted by a supermajoritarian process that thereby imbued it with legitimate authority; the people who adopted the Constitution and its amendments adopted the original public meaning of the terms in which it was written rather than any subsequent meanings that might be attached to those words; and therefore, for judicial review to be legitimate, it must enforce the original public meaning, rather than some evolutionary conception of meaning.
127. Trop v. Dulles, 356 U.S. 86, 101 (1958).
128. See, e.g., Roper v. Simmons, 543 U.S. 551, 563 (2005).
129. See id. at 564;
130. Atkins v. Virginia, 536 U.S. 304, 313-17 (2002).
131. See ELY, supra note 22.
132. See generally Michael C. Dorf, The Coherentism of Democracy and Distrust, 114 YALE L.J. 1237 (2005);
133. See also Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 YALE L.J. 1063 (1980).
134. See Brian Boynton, Democracy and Distrust after Twenty Years: Ely's Process Theory and Constitutional Law from 1990 to 2000, 53 STAN. L. REV. 397, 417 (2000).
135. See id. at 418.
136. See supra Part II.B.
137. Id.
138. See ELY, supra note 22, at 163.
139. Bowers v. Hardwick, 478 U.S. 186,196 (1986).
140. Lawrence v. Texas, 539 U.S. 558, 578 (2003).
141. Id. at 586.
142. Hardwick, 478 U.S. at 191 (seeing "[n]o connection between family, marriage, or procreation on the one hand and homosexual activity on the other").
143. See id. at 188 n.2.
144. See Lawrence, 539 U.S. at 579.
145. See Barry Friedman, William Howard Taft Lecture, The Importance of Being Positive: The Nature and Function of Judicial Review, 72 U. CIN. L. REV. 1257, 1302 (2004) ("observing that the median Justices on the present Court," that is, Justices Kennedy and O'Connor, "seem consciously attuned to public opinion" and noting that "[extrajudicially, Justice O'Connor has been quite explicit in pointing out that in the long run it is public opinion that accounts for change in politics, and in judicial doctrine.").
146. See Michael C. Dorf, The Paths to Legal Equality: A Reply to Dean Sullivan, 90 CAL. L. REV. 791 (2002).
147. See Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346 (2006).
148. See Richard H. Fallon, Jr., The Core of an Uneasy Case for Judicial Review, 121 HARV. L. REV. 1693 (2008).
149. Id. at 1710.
150. THE FEDERALIST NO. 78, at 469 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
151. See Fallon, supra note 118, at 1710 ("I have assumed that legislative action is more likely to violate fundamental rights than is legislative inaction.").
152. See Isaiah Berlin, Two Concepts of Liberty, in THE PROPER STUDY OF MANKIND 191, 203-06 (Henry Hardy & Roger Hausheer eds., 1997).
153. Lochner v. New York, 198 U.S. 45 (1905).
154. See Fallon, supra note 118, at 1711-12.
155. See, e.g., Richard H. Fallon, Jr., Constitutional Precedent Viewed Through the Lens of Hartian Positivist Jurisprudence, 86 N.C. L. REV. 1107 (2008) (arguing on grounds traceable to H.L.A. Hart that contemporary acceptance, rather than long-ago ratification, grants the Constitution authority and that originalist methods are justified only insofar as they are currently accepted).
156. Cf. Richard H. Fallon, Jr., The Supreme Court 1996 Term-Foreword: Implementing the Constitution, 111 HARV. L. REV. 56, 57 (1997) ("[T]o implement the Constitution successfully... the Court often must craft doctrine that is driven by the Constitution, but does not reflect the Constitution's meaning precisely.").
157. Christopher Eisgruber offers a closely related but less tentative defense of judicial review than Fallon proposes, arguing that the disinterestedness that follows from life tenure enables federal judges to make "a distinctive contribution to a political system that might otherwise be overly sensitive to the people's desires at the expense of their values." CHRISTOPHER L. EISGRUBER, CONSTITUTIONAL SELF-GOVERNMENT 6 (2001).
158. See supra notes 95-96 and accompanying text.
159. See Dist. of Columbia v. Heller, 128 S. Ct. 2783, 2787-2822 (2008).
160. See id. at 2822-79 (Stevens, J., dissenting).
161. See Michael C. Dorf, What Does the Second Amendment Mean Today?, 76 CHI.-KENT L. REV. 291 (2000).
162. See Michael C. Dorf, Identity Politics and the Second Amendment, 73 FORDHAM L. REV. 549, 552 (2004).
163. In the 2008 Presidential campaign, the most memorable line came from Joe Biden, who told people at a rally that he had two shotguns (one of which he inaccurately referred to as a Beretta) and suggested that he might shoot his running mate were the latter to try to take these weapons away. The Election Campaign: Heard on the Stump, ECONOMIST, Sept. 27,2008, at 38. Meanwhile, some substantial portion of the appeal of the other major party vice presidential candidate, Sarah Palin, apparently stemmed from her support of gun rights. Noam N. Levey, Election 2008: The Republicans-GOP Tries to Shake off Hangover, L.A. TIMES, Nov. 6,2008, at A12.
164. Heller, 128 S. Ct. at 2818.
165. See, e.g., Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309, 361 (1991) (suggesting, after canvassing the historical relation between firearms possession and race, "that a society with a dismal record of protecting a people has a dubious claim on the right to disarm them").
166. Cf. Heller, 128 S. Ct. at 2787-822.
167. See Richard A. Primus, When Should Original Meanings Matter?, 107 MICH. L. REV. 165, 169 (2008).
168. See Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 GEO. L.J. 1765, 1798-800 (1997).
169. See id. at 1800-03.
170. See supra Part II.
171. See JED RUBENFELD, FREEDOM AND TIME: A THEORY OF CONSTITUTIONAL SELF-GOV-ERNMENT 178-82 (2001) (capturing this idea nicely in discussing the "paradigm cases" that animated constitutional provisions).
172. See supra Part IV.