Sanford Levinson has a post on the New York Times’s “Campaign Stops” blog, in which he presents a condensed version of the argument that he’s been making for the better part of a decade elsewhere: specifically, that the U.S. Constitution is profoundly undemocratic, undermines political equality, and is unnecessarily difficult to amend through electoral politics. It’s a brisk and – characteristically for Levinson – entertaining cri de cœur about the need for reviving the “democracy” part of “constitutional democracy.” ...

I recently led classroom discussions on the Supreme Court’s death penalty rulings in Furman and Gregg. Unsurprisingly, my students weren’t impressed with Furman’s mélange of concurrences supporting (for different reasons) the per curiam holding that the capital sentencing in the case was cruel and unusual. In general, students are drawn to absolutes and decisiveness. They want exceptionless rules, unambiguous standards, and, all in all, an ordered universe of constitutional law. To their minds, Furman is a muddle, and Gregg’s clarification of its reasoning is scant improvement. Even when my students can’t agree on the morality or constitutionality of the death penalty, they want the Supreme Court to issue a decisive statement on the latter count (or perhaps both counts). ...

I’ve recently started reading Stephen Engel’s American Politicians Confront the Court: Opposition Politics and Changing Responses to Judicial Power, an historical overview of the conflict between political actors and the Supreme Court over constitutional interpretation. As the title suggests, Engel is more concerned with political leaders acting from within and on behalf of political institutions, parties, and coalitions, and not so much with mass movements on behalf of constitutional change or maintenance (but more on that later). One the aspects of the book that I like is Engel’s portrayal of changing attitudes about the permissibility of constitutional disagreement. In the early republic, according to Engels, the predominant modality of constitutional deliberation was one of “civic republicanism,” in which politicians making constitutional claims perceived themselves to be explaining what the Constitution actually meant or required, and their opponents were, in fact, acting unconstitutionally or failing to uphold correct constitutional readings. In the aftermath of the Civil War, civic republicanism gave way to “liberal pluralism,” in which persistent disagreement over the Constitution is tolerated, and politicians may legitimately advance different constructions of constitutional meaning. ...

While leading a discussion section on Griswold yesterday, I had what has now become a familiar experience: students tend to prefer, by a large margin, Justice Goldberg’s Ninth Amendment-based reasoning to Justice Douglas’s liberty reasoning, insofar as they both identify a constitutional right to privacy. Many students tend to be chary of Douglas’s “penumbras” and “emanations,” which they see as Lochnerizing – substantive due process rearing its ugly head. They see Goldberg’s reasoning as the more restrained option, in fact: they think that because he hangs his hat on the Ninth Amendment, he has a firmer textual basis for his argument than Douglas, who relies on a structural reading of the relationships between, and implications of, different rights guarantees, precedents, and principles. In my students’ eyes, Goldberg is a more principled textualist, at least in comparison with Douglas, whom they regard as ambitious, far-reaching, or activist. ...

There’s a recent article by Slate’s Dahlia Lithwick about a ruling from the DC circuit, in which Judge Janice Rogers Brown writes a concurrence that dwells on an economic libertarian vision of economic liberty. This liberty, despite not being mentioned by name in the Constitution’s text (which conservatives usually think matters in determining whether or not something is a legitimate liberty interest), has allegedly been under constant assault by “a democratic process” that Brown considers beholden to unnamed “powerful groups.” Lithwick, echoing the concerns of Erwin Chemerinsky and others, thinks that the story here is one of norms of professionalism and propriety, but I think that’s something of a non-issue; that cat walked out of the bag a long time ago. Insofar as the Supreme Court has emerged as a consequential political institution in its own right, it is inevitable that current and aspirant justices will employ politicized rhetoric in their decisions. ...