A Constitution for All Times

204 Pages·2013·0.722 MB·English

by  Karlan, Pamela S

a constitution
for all times

a Constitution
for all times
Pamela S. Karlan
A Boston Review Book
the mit press Cambridge, Mass. London, England
Copyright © 2013 Massachusetts Institute of Technology
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Library of Congress Cataloging-in-Publication Data
Karlan, Pamela S.
A constitution for all times / Pamela S. Karlan
pages. cm. — (Boston review books)
ISBN 978-0-262-01989-7 (hardcover : alk. paper)
1. Constitutional law—United States 2. Political questions and
judicial power. I. Title.
KF4550.K37 2013
342.73—dc23
2013031529
10 9 8 7 6 5 4 3 2 1
For Harry Blackmun, Viola Canales,
and my colleagues and students. Gladly
would I learn and gladly teach.

Contents
Introduction ix
Part I: Originalism, Activism, and Constitutional Values
1 In the Beginning 3
2 Founding Firearms 11
3 Why Interpretive Methods Matter 21
4 What Do We Mean By Judicial Activism? 33
5 The Unhealthy Activism of the Roberts Court 41
Part II: The Supreme Court and the Democratic Process
6 The Long Shadow of Bush v. Gore 55
7 The Wages of Watergate 65
8 Me, Inc. 75
9 Votes Behind Bars 85
Part III: Reasoning Together About Our Rights
10 Gideon’s Muted Trumpet 97
11 The Cost of Death 105
12 What’s a Right Without a Remedy? 115
13 When the Umpire Throws the Pitches 123
14 Empty Benches 135
15 Sometimes an Amendment Is Just an Amendment 145
16 It Takes Two 153
17 The Constitution Without the Court 161
Epilogue: A Movable Court 173
About the Author 185

introduction
In his 1928 book The Paradoxes of Legal
Science, then-judge, and later Supreme Court justice,
Benjamin Cardozo wrote that rather than defining
“due process of law”—a critical concept in constitu-
tional law—courts “leave it to be ‘pricked out’ by a pro-
cess of inclusion and exclusion in individual cases. . . .
It is all very well to go on pricking the lines,” he ob-
served, “but the time must come when we shall do
prudently to look them over, and see whether they
make a pattern or a medley of scraps and patches.”
This book originated as a series of columns in
Boston Review written between 2010 and 2013. Some
of the columns addressed individual cases then pend-
ing before or recently decided by the Supreme Court.