IF THEY HAD BROAD SUPPORT THEY'D BE LAW, NOT OPINION:

The Constitutional Doctrines that Won't Change, Even If the Supreme Court Does (VIKRAM AMAR AND ALAN BROWNSTEIN, Nov. 26, 2004, Find Law)

What factors make any constitutional doctrine permanent, or at least relatively stable, over time?

Much of American constitutional law has ebbed and flowed over time along with the varied cultural and political tides that have influenced our society - and our judges. But some doctrinal principles seem more insulated from retrenchment than others, even today - when change is in the air. Why is that so?

Political Constituencies Will Cut Back on Rights That Never Serve Their Interests

We suggest that a given constitutional doctrine moves toward stability and permanence when it is recognized as valuable by a broad and politically diverse constituency.

To see why, it's important first to note that the rights set forth in our Bill of Rights -- and the structural arrangements mandated by the rest of the Constitution -- impose burdens on third parties and/or the general public. In this sense, constitutional principles can be seen as expensive political goods that carry costs with them. Once these costs are analyzed, it becomes clear that freedom really isn't free.

Why would citizens readily accept the cost of a given constitutional constraint over the long haul, if that constraint has little utility for them right now in the cases the courts are adjudicating? The answer, we think, is that they perceive that the guarantee will work to their benefit in other circumstances and will provide them needed protection against government interference at least some of the time. So even if they are not benefiting with regard to a specific application of constitutional law they see today, they - or their children - may benefit from this guarantee on other occasions.

On this logic, a guarantee will be especially tenuous - and vulnerable to Court reconsideration - if it protects decisions or conduct of only particular political constituencies, and provides no foreseeable benefit to other parts of the polity. Such a guarantee may be short-lived, for when the political winds change and groups that have been out of office regain political power, those groups may well challenge that guarantee. Why wouldn't they? It requires them to incur normative or material losses for which they receive nothing in return - now, or in the foreseeable future.

If you apply this sensible analysis it becomes apparent that those "rights" that have been created by the Court in direct contradiction of uniform state statutes are the least likely to endure: abortion, criminal protections, gay rights, etc.

Posted by Orrin Judd at November 27, 2004 6:56 AM