The rise of originalism has cast doubt on the Warren Court’s most famous decisions. Federalist Society judges often malign these rulings as borderline illegitimate, nothing more than policy-driven legislating in the guise of judicial interpretation. In Democracy and Equality: The Enduring Constitutional Vision of the Warren Court, Geoffrey R. Stone and David A. Strauss seek to rescue Warren’s reputation, defending his legacy against his influential detractors. Their book is engaging and enlightening, and much less depressing than Cohen’s—even though it winds up in roughly the same place.
Stone and Strauss’s mission is not particularly fashionable today, even in liberal circles. Progressive groups such as the Constitutional Accountability Center have claimed originalism for the left, accusing conservatives of manipulating the theory to smuggle Republican aims into the law. Few prominent jurists or scholars now espouse “living constitutionalism,” the theory that constitutional commands must be interpreted in light of present-day circumstances, so thoroughly has the Federalist Society trashed its reputation. When Democrats convened a panel of experts to defend the legal basis of Trump’s impeachment, each panelist sought to channel the intent of the Founders; each laid claim to an originalist understanding of how the framers of the Constitution understood impeachment. It is telling that none even attempted to argue that we should adjust our conception of “high crimes and misdemeanors” to modern forms of corruption.
But many of the Warren Court’s most revered decisions are impossible to square with originalism, even the forward-looking kind espoused by many progressives. That fact, Stone and Strauss argue, should be celebrated, not ignored or concealed. To them, the Warren Court articulated a kind of living constitutionalism that is not only legitimate but necessary to safeguard the nation’s core beliefs. Hardcore originalism, Stone and Strauss make clear, is a recipe for the rampant discrimination that Warren fought to eradicate.
Read more at The American Prospect