Check out Jack Balkin’s Constitutionalism: It’s Political, It’s Legal– It’s Two Mints in One!. Here is a taste:
Dahlia [Lithwick] writes, "I was wondering aloud where the best locus of constitutional change might be." Dahlia’s preference is that courts should be the locus of constitutional change, not social movements, or, as she calls the ones she does not like, "special interest groups."
This is a false dichotomy. The locus of constitutional change occurs in both places in a sporadic (rather than continuous) interaction. History teaches us that courts normally do not engage in significant changes in constitutional doctrine without lengthy prodding from a sustained campaign by social movements and political parties, using not only litigation, but also political mobilization and cultural and social persuasion. The long march of progressivism that led to the New Deal revolution and the even longer march that led to the Civil Rights revolution are two obvious examples, but the same could be said of almost every important transformation in constitutional doctrine in the country’s history. If Dahlia likes the achievements of living constitutionalism, she had better give props to the
special interest groupsocial and political mobilizations that preceded them.