CASE LAW VS. CON LAW
I guess we think the decisions we like are constitutional Ã¢€” 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.
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.