Balkinization: A Third Founding: Part one -- The Twentieth Century Achievement:
by Bruce Ackerman // Yale Law School
This fixation on the Warren and Burger Courts is a symptom of a larger dis-ease: Whether you are a judge or an advocate, a bureaucrat or a legislative counsel, the place to begin your study of the modern Constitution is with the great decisions of a long line of Justices from Holmes to Scalia. Your main task is to massage these opinions into arguments that will convince the world that the law is on your side. You may, if you like, spice up your brief or opinion with some passing references to complex statutory schemes or elaborate institutional dances involving the presidency, Congress, and the states. But don’t get carried away with such peripheral matters: your real job is to make the most out of the case-law.
If you ignore this advice, the only thing you'll accomplish is to establish your lawyerly incompetence. Since this is not an option, few serious professionals pause to consider the tension between their modern fixation on the case-law and their focus on the great deeds of We the People during the Golden Age. There is an implicit message in this lawyerly turn from the People to the Court: popular sovereignty is dead in modern America.
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