May 11, 2004

Law, Liberty & Judicial Review. The constitutional theories of Profs. Bainbridge, Barnett and Cramer are discussed by Lawrence Solum here and here. Lots of links and a very interesting discussion, for those with a taste for such things. Quotable:
Essentially, Bainbridge would have judges engage in a process of construction that would transform the American system of checks and balances, enumerated federal power, and constitutional protection of individual rights (freedom of speech, equal protection, due process, privileges and immunities, and retained rights) into something like the English system of parliamentary supremacy, that is unlimited legislative power without constitutional protection for individual liberty. I am quite sure that Bainbridge does not offer this radical suggestion lightly. He is responding to a real problem in American constitutional theory and practice. The politicization of the judiciary plus the general and abstract language of the individual rights, separation of powers, and federalism provisions of the United States Constitution slowly but surely created a judiciary that sometimes views constitutional interpretation as the appropriate vehicle for enacting personal beliefs about what the law should be into binding constitutional law. This is a real worry, and it is not surprising that it would produce radical proposals, like Bainbridge’s proposal for judicial rewriting of the Constitution.
Posted by Greg Ransom | TrackBack