Eric remains insistent. He wants to know what I would tell judges about how to decide cases consistent with my views of the living constitution. As described earlier, I think that living constitutionalism is a theory about the legitimacy of the constitutional system as a whole rather than a theory that secures legitimacy by instructing judges to decide cases this way rather than that way. But Eric is certainly right that this emphasis does not exclude the possibility of giving judges general forms of advice as participants in the legal system. It's just that I don't think this sort of advice does much good for judges who are already well socialized into the mainstream of legal culture, and these are about the only sort of people who tend to get positions as judges in the first place. But Eric will not be denied: he wants an answer, so I guess I have to give him something.Nevertheless, I should warn him that my advice for judges is, I fear, rather boring and humdrum; worse yet, I doubt it will help any judge decide any difficult case, for it will prove indeterminate in a wide variety of situations. I do wonder whether it will satisfy Eric:
continue reading at Balkinization . . .