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Journal ArticleDOI

The Politics of Law: Capricious Originalism and the Future of the Supreme Court

28 Feb 2023-Polity-Vol. 55, Iss: 2, pp 356-362
TL;DR: In 2018, the United States Supreme Court overturned Roe v. Wade, the precedent that had guaranteed access to abortion as a fundamental liberty ensured by the Fourteenth Amendment for almost half a century as mentioned in this paper .
Abstract: In June 2022, the United States Supreme Court overturned Roe v.Wade, 1 the precedent that had guaranteed access to abortion as a fundamental liberty ensured by the Fourteenth Amendment for almost half a century. Most Americans don’t know much about the Supreme Court or the due process clause of the Fourteenth Amendment, but the abortion decision in Dobbs v. Jackson Women’s Health Organization triggered political protests, extensive press coverage, and a wave of voter registration. Candidates for political offices revised their campaign strategies. Millions of dollars were poured into a state-wide referendum on abortion in Kansas. In his majority decision in Dobbs, Justice Alito insisted that the Constitution speaks clearly; abortion is not a fundamental right to be defended by the Court but a policy issue to be determined by the political branches of government. Yet voters are skeptical about whether the Constitution provides such clarity. Polls have consistently shown that people (especially those who identify as Democrats) believe the justices of the Supreme Court are increasingly political, pursuing conservative goals rather than impersonally ruling on constitutionality. Political scientists have
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Journal ArticleDOI
28 Feb 2023-Polity
TL;DR: The appointment of Justice Ketanji Brown Jackson to the Supreme Court in April 2022 was a meaningful sign of progress as mentioned in this paper , and she became the first Black woman to serve on the Court, and with her addition the Court has greater gender and racial diversity than at any time in history.
Abstract: The appointment of Justice Ketanji Brown Jackson to the Supreme Court in April 2022 was a meaningful sign of progress. After her confirmation, President Biden declared, “We’re going to look back and see this as a moment of real change in American history.” Not only is Justice Jackson the first Black woman to serve on the Court, but with her addition, the Court has greater gender and racial diversity than at any time in history. Four of the nine justices are women and a third are people of color. Although many groups have never been represented on its bench, today’s Court looks more like America than ever before. However, this descriptive representation comes at a time when the Court is scaling back the rights of women andminoritized groups. Last term, the Court declared that abortion is not a constitutionally protected right, undermined Native American sovereignty, permittedCongress to deny residents of Puerto Rico benefits available to other citizens, and limited opportunities for non-citizens to seek judicial

3 citations

Journal ArticleDOI
28 Feb 2023-Polity
TL;DR: The conservative legal movement has been gaining traction for nearly half a century and owes much of its success and incorporation into mainstream American politics to the Federalist Society for Law and Public Policy Studies (FedSoc) as mentioned in this paper .
Abstract: The conservative legal movement has been gaining traction for nearly half a century and owes much of its success and incorporation into mainstream American politics to the Federalist Society for Law and Public Policy Studies (FedSoc). After a blockbuster 2021 term, many Americans noticed the power of a new conservative supermajority on the Supreme Court. This ideological composition is the result of decades of careful training of American jurists by FedSoc affiliates paired with tactful political maneuvering to allow their originalist allies to ascend to the highest level. The insurmountable conservative supermajority at the Supreme Court leaves left-of-center interests with little choice than to concentrate efforts at intermediate federal appeals courts. The recent rulings’ policy implications, including those considered by our colleagues in this symposium such as gun control, abortion, environmental regulation, free speech, free exercise, as well as tribal sovereignty, do not bode a welcoming Supreme Court for litigation strategies supporting the goals of left-of-center or

3 citations

Journal ArticleDOI
01 Mar 2023-Polity
TL;DR: Cole et al. as mentioned in this paper used the cover art of The New Yorker to depict the cast of The Andy Griffith Show as a psychedelic band, depicting the small-Town sheriffs as hippies.
Abstract: Previous articleNext article FreeButtered BagelsAlyson Cole, Robyn Marasco, and Charles TienAlyson Cole Search for more articles by this author , Robyn Marasco Search for more articles by this author , and Charles Tien Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreAs the press production schedule requires, we are writing our Editors’ Note for the April issue many months earlier—just a few days into 2023. With the new year comes anticipation of fresh starts and clean slates. The newly-elected members of the 118th Congress are in Washington, D.C. organizing for the new session. In an act of promising unity, the Democrats unanimously elected Hakeem Jeffries, the first person of color to lead their party in Congress; a second historic first after Nancy Pelosi became the first woman elected Speaker of the House. Such an auspicious beginning might give one hope.But another sort of history is unfolding on the other side of the aisle, where Kevin McCarthy needed fifteen rounds of voting to become the next Speaker; mainly because some members of the so-called Freedom Caucus demanded that McCarthy pledge to curb more of Americans’ freedoms. That the Trump-endorsed leader had such difficulty securing the support of the ultra-MAGA wing vividly displays what we already knew: their ambition is to tear down the institutions they were elected to uphold. But still, watching their destructive impulse turned inward is something worth savoring, an instance of just desserts, chickens coming home to roost, or, if you will, of buttered bagels.Why buttered bagels? It is the title of this issue’s cover art, first of all. We relished the idea of a political science journal adorned with psychedelic images and the tagline, “Buttered Bagels.” It seemed fitting in some way, as we are in the midst of a psychedelic renaissance, in elections, public policy, popular culture, and scientific research. Several cities and the state of Oregon have decriminalized the use and possession of psilocybin mushrooms. This follows President Biden’s pardon of those convicted of federal marijuana possession, House passage of a bill to federally legalize marijuana, and the decriminalization and legalization of cannabis in many states across the country. In New York State, where Polity is based, a recreational cannabis market has just opened up, with a deliberate social justice mission. The aim is to establish a market that will first benefit those most negatively impacted by the war on drugs. There is a faint Rawlsian logic to the New York approach. Whether it portends the end of prohibition and the beginning of a more just and humane drug policy remains to be seen.“Buttered Bagels” is a handy metaphor for the wheel of injustice, which rolls over those who are powerless to stop it. It can also serve to denote our current impasse: the center continues to hold, but it is empty. Our politicians certainly know who butters their bagels and the result is a government beholden to the wealthy, powerful, and well-connected. At the same time, we found that this cover art, and all of the associations it inspired, somehow gave us some light relief from our regular reflections on the sorry state of the world. It invoked joy, laughter, pleasure, and movement. It reminded us, too, of a historical moment that continues to shape our politics.The artist, Bob Eckstein, is a cartoonist for The New Yorker, author of a New York Times best-selling book, and humorist whose work explores the darker sides of seemingly ordinary objects.1 “Buttered Bagels” features the cast of The Andy Griffith Show as a psychedelic band, depicting the small-town sheriffs as hippies. Crafted like an LP-cover, the collage is an intensely wild, kaleidoscopic mix of images, including Abraham Lincoln, Babe Ruth, Muhammad Ali, magicians and circus performers, savannah and amphibious animals, and a bespectacled, bearded man blowing smoke rings who bears a striking resemblance to René Descartes. The playful assemblage of colors and cutouts is shadowed by something vaguely unsettling, haunting even. Look more closely, and some of the images are downright disturbing. This foreboding sensation, the silly clowns who turn frighteningly monstrous, is not unlike the MAGA movement, the Trump administration, and the surreal events of January 6th, 2021. In the Trump-led insurrection, in the subsequent years of election denialism, and now in the chaos of the speakership vote, we can see plainly the dangers to democratic institutions that MAGA represents. While voters rejected Trump’s candidates in the 2020 midterms, among what remains is a band of six House Republicans who are a slim minority of the Republican caucus but wield disproportionate power in the halls of an evenly divided Congress. And on the largest social media platforms, a nihilistic Far Right is positively flourishing.But we digress—back to bagels! The roll with a hole has also served as a metaphor for business advisors to explain how to create a more cohesive workforce (e.g., Robbie Samuels’s best seller, Croissants vs. Bagels).2 It has been invoked by political strategists to clarify the redistricting preferences of Democrats and Republicans (allegedly, Democrats prefer pizza and Republicans bagels in this usage).3 And, the “bagel strategy” was deployed by Pentagon officials to describe their approach to bombing in Vietnam; for example, in 1967 when they circled and shelled the circumference of the city of Haiphong.4Non-metaphorical bagels are themselves the subject of intense public debate. Matters such as preparation (boiling versus baking), size (Montreal versus Jerusalem), texture (dense versus fluffy), types (savory versus sweet), as well as toppings and schmears are regularly depicted as “wars” in the press. Journalists consider politicians’ preferences newsworthy: Biden’s family likes their bagels “spicy,” while New York gubernatorial candidate Cynthia Nixon was toasted for her supposed lack of “bagel etiquette.” (As the New York Post reported it, Nixon ordered cream cheese, capers, onions, and lox on cinnamon raisin—tref!) We can only await what carb-controversy might be uncovered when reporters trail the Jew-ish George Santos to the kosher bakery. While the New York Historical Society runs an exhibit on the history of the Jewish Delicatessen, which concludes with a visit to their cafeteria serving—what else?—bagels, some American Jews worry about the kitschification of Judaism, especially food.5 An everything bagel meme has gone viral, possibly inspired by the 2022 film, Everything Everywhere All At Once, that employs the same variety of bagel to reflect on the human search for meaning in a meaningless multiverse.6This volume itself offers a bit of everything, in the best sense. The first article by Kathleen Ferraiolo, “The Intersection of Direct Democracy and Representative Government: State Legislators’ Response to Ballot Measures,” examines state legislators’ role in amending or repealing passed state ballot measures. While most scholars have focused on the trajectory of particular ballots, Ferraiolo’s study expansively covers all state initiatives between 2010–2018.7 Ferraiolo finds two issues have been the source of most legislative involvement: marijuana legalization and “governance” policies.In “Beyond the Anglo-World: Settler Colonialism and Democracy in the Americas” Adam Dahl insists we expand our analyses of colonial legacies to include the imperial regions beyond the Anglo-World. A concept and history of settler colonialism drawn primarily or exclusively from the Anglo-World is limited in various ways, but Dahl argues that the real risk is in missing the parallel relationship with other colonial ideologies and practices, particularly those of the Spanish imperial world. Drawing inspiration from Alexis de Tocqueville’s comparisons of Anglo- and Spanish-American colonization, as well as Latin American writers such as Domingo Faustino Sarmiento and Lorenzo de Zavala, Dahl uncovers a “common discursive terrain in grappling with the prospects for democracy in the new world.”8 Bringing these writers together illuminates how settler colonial ideologies and imaginaries in the Americas circulated in a shared hemispheric space and reciprocally shaped one another in complex and contingent ways.Matthew J. Uttermark, Kenneth R. Mackie, and Carol S. Weissert in “The Color of Discretion: Race and Ethnicity Biases in School Suspension,” look at racial discrimination in punishments imposed on middle- and high-school students in Florida. Applying a social construct model to examine implicit racial bias in school suspensions, the authors find that relative to schools with higher percentages of white students, schools with higher percentages of black students are more likely to give those students out-of-school suspensions, and schools with higher percentages of Hispanic students are more likely to give them in-school suspensions.9 Importantly, the authors also uncover a spillover effect where schools with higher percentages of black or Hispanic students also see higher suspension rates for white students.The final essay in this issue is by Sonali Chakravarti. In “How Woke Can a Juror Be? The Jury in the Chauvin Trial, Critiques of Law Enforcement, and a New Model of Impartiality,” Chakravarti argues that incorporating a critique of law enforcement into the process by which jurors are selected in a jury trial (voir dire) had a significant impact on the 2021 trial of Derek Chauvin. Chakravarti identifies three main changes.10 First, black jurors were less likely to be dismissed for long-held opinions regarding systemic racism in policing. Second, the court clarified what contextual impartiality might mean in the current era. Third, the topics addressed in jury selection highlighted the range of life experiences that enhance jurors’ capacity for phronesis, Aristotle’s term for practical wisdom, necessary for deliberation and judgment.Our April issue also includes a timely symposium on the U.S. Supreme Court. Beginning with the premise that the Supreme Court must be viewed as a political institution, each of the contributions reflect on the Court’s 2022 term and its meaning for American political ideas, culture, and practice. In the opening essay by the symposium organizer, “The Politics of Law: Capricious Originalism and the Future of the Supreme Court,” Susan Liebell argues that the originalist method of interpreting the Constitution “advances the heteronormativity, patriarchy, settler colonialism, and white supremacy widely accepted in the eighteenth and nineteenth centuries into the twenty-first century.”11 Joseph Blocher and Andrew Willinger in “Does the Second Amendment Make Gun Politics Obsolete?” show how originalism also makes it more difficult to include recent evidence in the development of gun policy, through their analysis of New York State Rifle and Pistol Association v. Bruen.12 In “How the Christian Right Slayed a Monster and Reframed the Religion Clauses in Bremerton” Joshua C. Wilson and Amanda Hollis-Brusky explain that the Kennedy v. Bremerton School District decision, which ruled that post-game prayers led by a public high school football coach on the field were not in violation of the Establishment Clause, was the product of and a major victory for the Christian Right.13 Viewing the Court as a representative institution, Kirsten Widner in “The Supreme Court and the Limits of Descriptive Representation,” explores the limits of descriptive representation in the Court for advancing substantive rights for women and persons of color.14 Christine C. Bird and Zachary A. McGee in “Looking Forward: Interest Group Legal Strategy and Federalist Society Affiliation in the United States Circuit Courts of Appeal” explain that interest groups engaged in legal advocacy are reevaluating strategies. They argue that progressive interests should redirect focus and resources away from the Supreme Court and toward intermediate federal courts.15 Christina L. Boyd, Paul M. Collins, Lori A. Ringhand, and Karson A. Pennington in “Constructing the Supreme Court: How Race, Ethnicity, and Gender Have Affected Presidential Selection and Senate Confirmation Hearings” examine how race, ethnicity, and gender have affected U.S. Supreme Court nominations over time.16 Julie Novkov writes that West Virginia v. EPA, which invalidated an Environmental Protection Agency rule limiting the production of greenhouse gasses, but left the regulatory framework that supports administrative agencies intact, signals that major changes may be on the horizon in the Court’s interpretation of administrative law, in “West Virginia v. EPA: Whither the New Deal Order?”17 In the final contribution to the symposium, Mary Ziegler in “Dobbs and the Jurisprudence of Exclusion,” maintains that in overturning Roe the Court created a jurisprudence of exclusion, where only one side of the abortion conflict is seen as legitimate, one group of Americans’ tradition matters, and where there is only one legitimate account of history.18The volume closes, as always, with our “Ask a Political Scientist” feature, an interview with the ever-thoughtful Katherine Cramer. Cramer has spent her career seeking to understand how Americans view politics and their role and place in it. To facilitate this goal, Cramer joins people at their community meetings, and observes and listens to how they describe their daily struggles and their hopes for change. She explains her method of “analytic listening” in our interview: “I have found no better way to study [the way people make sense of politics] than to listen to conversations among groups of people who know one another, in a place that they normally spend time in.”19 Using this approach, Cramer advanced an argument about “rural consciousness” and the “politics of resentment” to capture the affective disposition that people in rural parts of the country assume toward urbanites and what they see as their radically different policy interests and preferences. Her award-winning 2016 book, The Politics of Resentment, focused on Scott Walker’s ascension to governor of Wisconsin, viewed by many at the time as an anomaly. But political resentment of many shades and origins soon became the lingua franca to make sense of the rise of MAGA and growing polarization in American politics. In our interview, Cramer clarifies how political resentments have morphed into more destructive affects, though more important for her is how such emotions deflect and distract Americans from the core of the matter, namely, distributive injustice. She also speaks about how her recent work engages the intersection of race and capitalism more directly. We thank this gifted listener, Cramer, for giving us the opportunity to listen and to learn from her.Thanks to Bob Eckstein for the cover art for this issue. Additional thanks to Be Stone for everything she does for the journal. We hope our readers will consider Polity a venue for their scholarship and submit their work to us for review. We will continue to push the discipline in new directions and encourage the consumption of carbs for energy to keep going.Notes1. Bob Eckstein, Footnotes from the World’s Greatest Bookstore: True Tales and Lost Moments from Book Buyers, Booksellers, and Book Lovers (New York: Clarkson Potter Publishers, 2016); Eckstein also has a regular newsletter, “The Bob,” found here: https://thebob.substack.com/.2. Robbie Samuels, Croissants vs. Bagels: Strategic, Effective, and Inclusive Networking at Conferences (Robbie Samuels, 2017).3. William Schneider, “CNN Inside Politics,” CNN (April 18, 2001), http://www.cnn.com/TRANSCRIPTS/0104/18/ip.00.html.4. Newsweek (September 25, 1967).5. New-York Historical Society Museum and Library, “I’ll Have What She’s Having: The Jewish Deli,” November 11 2022–April 2, 2023, https://www.nyhistory.org/exhibitions/ill-have-what-shes-having-the-jewish-deli; and Mireille Silcoff, “Potato Latke Cocktail, Anyone?,” New York Times, Opinion (December 18, 2022), https://www.nytimes.com/2022/12/18/opinion/hanukkah-kitsch.html.6. Daniel Kwan and Daniel Scheinert, Everything Everywhere All at Once, A24, Lionsgate, 2022.7. Kathleen Ferraiolo, “The Intersection of Direct Democracy and Representative Government: State Legislators’ Response to Ballot Measures,” Polity 55 (2023): 248–74.8. Adam Dahl, “Beyond the Anglo-World: Settler Colonialism and Democracy in the Americas,” Polity 55 (2023): 275–301, at 275.9. Matthew J. Uttermark, Kenneth R. Mackie, and Carol S. Weissert, “The Color of Discretion: Race and Ethnicity Biases in School Suspension,” Polity 55 (2023): 302–31.10. Sonali Chakravarti, “How Woke Can a Juror Be? The Jury in the Chauvin Trial, Critiques of Law Enforcement, and a New Model of Impartiality,” Polity 55 (2023): 332–55.11. Susan Liebell, “The Politics of Law: Capricious Originalism and the Future of the Supreme Court,” Polity 55 (2023): 356–62, at 358.12. Joseph Blocher and Andrew Willinger, “Does the Second Amendment Make Gun Politics Obsolete?” Polity 55 (2023): 363–70.13. Joshua C. Wilson and Amanda Hollis-Brusky, “How the Christian Right Slayed a Monster and Reframed the Religion Clauses in Bremerton,” Polity 55 (2023): 371–79.14. Kirsten Widner, “The Supreme Court and the Limits of Descriptive Representation,” Polity 55 (2023): 380–88.15. Christine C. Bird and Zachary A. McGee, “Looking Forward: Interest Group Legal Strategy and Federalist Society Affiliation in the United States Circuit Courts of Appeal,” Polity 55 (2023): 389–99.16. Christina L. Boyd, Paul M. Collins, Lori A. Ringhand, and Karson A. Pennington “Constructing the Supreme Court: How Race, Ethnicity, and Gender Have Affected Presidential Selection and Senate Confirmation Hearings,” Polity 55 (2023): 400–409.17. Julie Novkov, “West Virginia v. Environmental Protection Agency: Whither the New Deal Order?,” Polity 55 (2023): 410–18.18. Mary Ziegler, “Dobbs and the Jurisprudence of Exclusion,” Polity 55 (2023): 419–26.19. Alyson Cole, “Ask a Political Scientist: A Conversation with Katherine J. Cramer about Listening as a Way of Democratic and Scholarly Life,” Polity 55 (2023): 427–40, at 435. Previous articleNext article DetailsFiguresReferencesCited by Polity Volume 55, Number 2April 2023Buttered Bagels The Journal of the Northeastern Political Science Association Article DOIhttps://doi.org/10.1086/724222 Views: 216Total views on this site HistoryPublished online March 01, 2023 © 2023 Northeastern Political Science Association. All rights reserved.PDF download Crossref reports no articles citing this article.
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Book
01 Oct 2020
TL;DR: The authors examines the conditions that gave rise to a set of distinctly "Christian Worldview" law schools and legal institutions and analyzes their institutional missions and cultural makeup and evaluates their transformative impacts on law and legal culture to date.
Abstract: While the Christian Right has long voiced grave concerns about the Supreme Court and cases such as Roe v. Wade, until recently its cultivation of the resources needed to effectively enter the courtroom had paled in comparison with its efforts in more traditional political arenas. A small constellation of high-profile leaders within the Christian Right began to address this imbalance in earnest in the pivot from the twentieth to the twenty-first century, investing in an array of institutions aimed at radically transforming American law and legal culture. Separate But Faithful is the first in-depth examination of these efforts—their causes, contours, and consequences. Drawing on an impressive amount of original data from a variety of sources, the book examines the conditions that gave rise to a set of distinctly “Christian Worldview” law schools and legal institutions. Further, the book analyzes their institutional missions and cultural makeup and evaluates their transformative impacts on law and legal culture to date. Separate But Faithful finds that this movement, while struggling to influence the legal and political mainstream, has succeeded in establishing a resilient Christian conservative beacon of resistance: a separate but faithful space from which to incrementally challenge the dominant legal culture by training and credentialing, in the words of Jerry Falwell, “a generation of Christian attorneys who could . . . infiltrate the legal profession with a strong commitment to the Judeo-Christian ethic.”

10 citations

Journal ArticleDOI
01 Apr 2021-Polity
TL;DR: In this paper, the authors synthesize insights from political theory, feminist legal theory, critical race theory, and American legal history for the case of District of Columbia v. Heller.
Abstract: This case study of the Second Amendment precedent, District of Columbia v. Heller, synthesizes insights from political theory, feminist legal theory, critical race theory, and American legal histor...

7 citations

Journal ArticleDOI
28 Feb 2023-Polity
TL;DR: Biden as discussed by the authors made a speech on the U.S. Supreme Court to support the appointment of judge Ketanji Brown Jackson to serve as associate justice of the Supreme Court.
Abstract: We are grateful to Susan Liebell and the Polity editors and reviewers for helpful feedback on this article and support of this symposium. 1 “Remarks by President Biden on his Nomination of Judge Ketanji Brown Jackson to Serve as Associate Justice of the U.S. Supreme Court,” The White House, https://www.whitehouse.gov /briefing-room/speeches-remarks/2022/02/25/remarks-by-president-biden-on-his-nomination-of -judge-ketanji-brown-jackson-to-serve-as-associate-justice-of-the-u-s-supreme-court/.

4 citations

Journal ArticleDOI
28 Feb 2023-Polity
TL;DR: The Dobbs Court as mentioned in this paper takes sides in a longstanding historical debate about how US law and culture viewed early abortion as acceptable, cherry-picking those accounts that support its vision of the past, even if they are not widely accepted.
Abstract: The critics of Roe v. Wade, the landmark decision recognizing a right to choose abortion, long faulted the Court for an act of failed diplomacy. Scholars across the ideological spectrum argued that Roe had unnecessarily alienated antiabortion Americans by doing too much too soon, imposing a sweeping resolution, and disrupting a state-by-state process of experimentation. The conservative Supreme Court recently positioned itself as a more rational, neutral arbiter. “This Court,” the Court opined inDobbs v. JacksonWomen’s Health Organization, “cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.” If Roe and Casey took sides in the conflict over abortion, Dobbs is far worse. The Dobbs Court takes sides in a longstanding historical debate about how US law and culture viewed early abortion as acceptable, cherry-picking those accounts that support its vision of the past, even if they are not widely accepted. The Court claims to be bound by precedent when rejecting the idea of an abortion right rooted in principles of constitutional equality, all while breezily dismantling a precedent in Roe that is nearly five decades old. The Court proclaims its ability to rise above the partisan fray on abortion at the same time that it echoes a rich range of arguments

4 citations

Journal ArticleDOI
28 Feb 2023-Polity
TL;DR: In American law, the boundaries of regulation are set by politics and the Constitution as mentioned in this paper , and the line between these political and constitutional constraints is never entirely clear, as political rhetoric and constitutional doctrine borrow from one another in innumerable ways.
Abstract: InAmerican law, the boundaries of regulation are set by—among other things— politics and the Constitution. Either one can serve as a constraint. Regulations that are politically unpopular or otherwise unfeasible are non-starters regardless of whether they satisfy the Constitution. Regulations that violate the Constitution, on the other hand, may be tremendously popular but will often be struck down by courts. The line between these political and constitutional constraints is never entirely clear, as political rhetoric and constitutional doctrine borrow from one another in innumerable ways. Elected officials take oaths to uphold the Constitution; judges often act in ways that appear political. But in a broad sense, judges are more commonly associated with the enforcement of constitutional law and regularly deny that they are doing politics—a matter for elected officials. Recognizing some slippage between the categories, we can draw a line between judge-enforced constitutional law and democratic politics. Formost of American history, the balance of gun rights and regulationwas set by politics—not, as one might suspect from its prominence in the current gun debate, the Second Amendment. Decisions about gun law were made by elected officials at the federal, state, and local level, responding to different forms of political pressure.

3 citations