In a recent post I stated that one way to update Parsons’ AGIL model of sociology is to merge the legal with the political. Take constitutional law. Keeping conceptually separate constitutional law from the political is analytically untenable in a world in which Bush v. Gore is an empirical fact. One of my favorite legal scholars, Richard Posner, makes this point as well as anyone, in a Harvard Law Review paper from 2004, available here. In it Posner concludes that,
viewed realistically, the Supreme Court, at least most of the time, when it is deciding constitutional cases is a political organ
The year 2012 brought us Robert’s dramatic decision to side with Obama on the Affordable Care Act, which amounted to another empirical moment suggesting constitutionality rests not on some objective essence found within the Constitution, but in the political interests and values of the object’s interpreters and surrounding actors.