You Want It, You Got It: My Advice for Judges (For What it's Worth)

Slate's blog on legal issues.
March 31 2008 3:34 PM

You Want It, You Got It: My Advice for Judges (For What it's Worth)

Eric remains insistent .He wants to know what I would tell judges about how to decide casesconsistent with my views of the living constitution. As describedearlier, 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 thepossibility of giving judges general forms of advice as participants inthe legal system. It's just that I don't think this sort of advice doesmuch good for judges who are already well socialized into themainstream of legal culture, and these are about the only sort ofpeople who tend to get positions as judges in the first place. But Ericwill 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 boringand humdrum; worse yet, I doubt it will help any judge decide anydifficult case, for it will prove indeterminate in a wide variety ofsituations. I do wonder whether it will satisfy Eric:

Jack M. Balkin is Knight professor of constitutional law and the First Amendment at Yale Law School.



Don’t Worry, Obama Isn’t Sending U.S. Troops to Fight ISIS

But the next president might. 

IOS 8 Comes Out Today. Do Not Put It on Your iPhone 4S.

Why Greenland’s “Dark Snow” Should Worry You

How Much Should You Loathe NFL Commissioner Roger Goodell?

Here are the facts.

Three Talented Actresses in Three Terrible New Shows


The Human Need to Find Connections in Everything

It’s the source of creativity and delusions. It can harm us more than it helps us.


More Than Scottish Pride

Scotland’s referendum isn’t about nationalism. It’s about a system that failed, and a new generation looking to take a chance on itself. 

The Ungodly Horror of Having a Bug Crawl Into Your Ear and Scratch Away at Your Eardrum

We Could Fix Climate Change for Free. What Exactly Is Holding Us Back?

  News & Politics
Sept. 17 2014 6:09 PM Here's Who Voted to Fund Syrian Rebels and Get This ISIS Conflict Really Cooking
Business Insider
Sept. 17 2014 1:36 PM Nate Silver Versus Princeton Professor: Who Has the Right Models?
Gentleman Scholar
Sept. 17 2014 5:10 PM Should Men Still Open Doors for Women? Or is it ungentlemanly to do so at all?  
  Double X
The XX Factor
Sept. 17 2014 6:14 PM Today in Gender Gaps: Biking
  Slate Plus
Slate Fare
Sept. 17 2014 9:37 AM Is Slate Too Liberal?  A members-only open thread.
Brow Beat
Sept. 17 2014 5:56 PM Watch Louis C.K., Dave Chappelle, Bill Hicks, Mitch Hedberg, and More on New YouTube Channel
Future Tense
Sept. 17 2014 5:26 PM If Fixing Global Warming Is Free, What’s the Holdup?
  Health & Science
Sept. 17 2014 4:49 PM Schooling the Supreme Court on Rap Music Is it art or a true threat of violence?
Sports Nut
Sept. 17 2014 3:51 PM NFL Jerk Watch: Roger Goodell How much should you loathe the pro football commissioner?