In my previous post, I noted that Jack Balkin had argued that liberal constitutional theorists are likely to adopt more activist constitutional theories if Justice Scalia’s vacancy is filled by a liberal justice. I argued that this would be improper, as it would involve the constitutional theorists engaging in strategic behavior rather than a principled approach.
Jack has written a response, claiming that I had misinterpreted him to be endorsing this change rather than simply predicting it would occur. While I am not sure that this was entirely clear in his post, if Jack says that is what he meant, then I am willing to accept it.
While we are on the subject of misinterpretations, I should note that Jack interprets me as claiming that he and other liberal theorists actively support this strategic, bad faith approach. But to begin with, I never said anything about Jack engaging in such strategic behavior. I merely said that he was acknowledging that his liberal brethren were engaging in it. In other words, even liberals were admitting that other liberals were engaging in strategic behavior. That is different than saying Jack was advocating it.
But putting to the side what Jack was saying, my post was not entirely about Jack. I also noted that Dick Fallon had advocated adjusting one’s constitutional theory based on changing circumstances. Thus, Jack cannot deny that a very highly respected liberal constitutional theorist actually recommends engaging in this practice, although Dick does note its dangers.