CASE LAW VS. CON LAW

Kevin Whited links Jay Nordlinger on this subject:

I guess we think the decisions we like are constitutional — and that the decisions we dislike are just plain nutty case law, waiting to be overturned by a more enlightened bench. I simply wish liberals would think of that when they attack our nominees as anti-constitutional for agreeing with (for example) the late Democratic justice Byron White that Roe was a travesty.

Kevin observes,

There was a time when constitutional law was not simply case law. But recovering that conception of American constitutionalism is a mighty task. Especially when those who are trained in constitutional law in most of the nation’s law schools are taught by lawyers with a dedication to the case-law conception of American constitutionalism , and whose commitment to a broader undestanding of American political/legal thought varies considerably.

A couple years back, Harvard Law professor Alan Dershowitz was debating Alan Keyes (who has a PhD in political science from Harvard) on Hardball and remarked that, because Keyes had never been to law school, he was unqualified to comment on the Constitution. Quite a non sequitur to me but totally consistent with the way Dershowitz and others view the Constitution.

While there is a theoretical distinction, they are essentially right: for all practical purposes con law really is nothing more than how a majority of the Supreme Court reads the Constitution at any given moment.

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.