How Constitutional Theory Matters

Crosspost from Balkinization

Over the last quarter century, conservative intellectuals and opinion-makers have promoted their political agenda by (in part) tethering it to a family of constitutional modalities that, for the sake of convenience, we may place under a single surname: originalism. The originalism movement was born of a crisis of confidence on the right; it was part of a politics of backlash against the perceived excesses of the Warren and Burger Courts. Now, notwithstanding control of the White House and Congress, progressive intellectuals face their own crisis of confidence, and the question naturally arises: What will Our Originalism look like?

C2020 in The New Yorker

In this week's New Yorker, Jeffrey Toobin draws on The Constitution in 2020 to illuminate President Obama's (unique? idiosyncratic? pragmatic?) approach to the courts and the judicial appointment process. Toobin raises important questions about the role judges have played and should play in reform movements, all while suggesting - echoing several contributors to The Constitution in 2020 - that the new frontier for change may not be the courts, but popular politics.