It now often said that social movements help generate modern constitutional law. Sometimes the claim is made in defense of living constitutionalism, because, according to many scholars, the influence of social movements shows that living constitutionalism has democratic roots and does not consist of rights simply minted by judges. While it is certainly true that social movements play an important role in living constitutionalism, they do not erase its democratic deficit, let alone assure that new constitutional norms reflect the consensus that the amendment process would provide. One reason for the continuing deficit is that justices write opinions to aid some movements and not others.
A case in point is the movement for same-sex marriage.