The seemingly inexhaustible debate over the proper role of the Supreme Court in constitutional adjudication concerns an issue of enormous practical importance: whether the Court has or should have the power to overturn the decision of a democratically elected legislature to, say, prohibit abortions, affects not only the allocation of significant political power, but also the moral lives and indeed the very bodies of millions of citizens. For this reason, many contributions to that debate, from academics as well as from practicing politicians, have burned with the passion of political commitment, seeking to influence events directly by persuading judges (or those who might have power to constrain them) to adopt particular policies.
Michael Perry's The Constitution, the Courts, and Human Rights is not such a book. I don't mean that Perry lacks political commitment, or does not sincerely wish that the courts would adopt the program he proposes. But both his substantive conclusions and his writing style suggest not only that the book is not directly addressed to an audience of judges and legislators, but also that his project is fundamentally detached from what political institutions actually do. Perry brings to his book a thoughtful intelligence and a comprehensive knowledge of the academic literature on the questions he addresses, and he has much to say that is interesting and valuable. But I think that few will find his conclusions satisfying as a program for the Supreme Court to follow.
Constitutional Law | Law | Law and Philosophy
Gerard E. Lynch,
Constitutional Law as Moral Philosophy,
Colum. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2197