THE CONSTITUTION, HIGH AND LOW: So I’m about to criticize some stuff Professor Jack Balkin has been saying about jurisprudence on his blog, Balkinization. Let’s start with a few disclaimers: 1) I haven’t read his published writing on these topics, just his blog. 2) He teaches law for a living. I spout off for a living. 3) Therefore, he undoubtedly has vastly more learning and whatnot in this realm than I do. If he, or anyone else for that matter, wants to reply to these posts with a curt, “Read my book!” (or, even more embarrassing, “Read your father’s book!”), that’s awesome–I know I need more education on these topics and am definitely taking reading-list suggestions. 4) Nonetheless, I think I’m right! OK, let’s go. This is a several-post series–I tried to keep it brief, but “brief” in legal matters is not what it sounds like….

This all started because Juan Non-Volokh tartly commented, “[M]any of those on the right (myself included) see Bush v. Gore as the Warren/Brennan legacy coming home to roost. For decades, liberals generally supported an activist court that discovered constitutionally protected rights and discarded traditional restraints on an activist judiciary (e.g. much of the political question doctrine, as in Baker v. Carr). In the view of many on the right, the Constitution was ‘taken over by ideological extremists’ during this period. (Nonetheless, the response was not to shut down President Carter’s nominees, but to wait until more conservative judges could be nominated by a sympathetic president.) Therefore, when we hear Balkin or anyone else inveigh against Bush v. Gore, our gut reaction is to say ‘Well now you know how we felt about [insert Roe, Baker, Miranda, or some other outrageous case here].’ So while I agree with Balkin that those on the right should try and appreciate the outrage of left over the election, I would also suggest that those on the left should try and appreciate that the right feels the left is simply reaping what it sowed.”

Balkin took issue with that characterization, and replied with a series of claims, some which strike me as accurate (the Supreme Court has issued lots of other recent-ish rulings that leftists view as conservative judicial activism), some of which strike me as inaccurate for “anthropological” reasons (Balkin suggests that the VAWA case, or Lopez, are felt by actual existing leftists as parallels to the way pro-lifers feel about Roe; I spend a lot of time around leftist legal types and have only ever heard them refer to one case–Bush v. Gore of course–with the kind of passion that attends pro-lifers’ discussions of Roe), and one of which strikes me as wrong in an interesting way.

That’s his distinction between “high politics” and “low politics” (continued here). High politics is a general theory of rights and judging. (Balkin: “[O]ur views about the political principles and values that we think the Constitution read in its best light espouses–and our views about how those principles and values should be applied to the facts of the case as we understand those facts. As Justice Frankfurter once put it, a lot depends on the pictures of the world inside a judge’s head when a judge makes a decision. We can call those pictures ideology, or political or moral beliefs, or whatever you like.”) Low politics is party politics–pulling for the donkeys or the elephants. High politics (Roe: it’s about rights) is both unavoidable and good-when-the-good-guys-do-it, low politics (Bush: it’s about Bush) is avoidable and bad no matter who it benefits.