Books February 2006
Enforcing a “mood”
On Stephen Breyer’s Active Liberty.
It ought to be a major intellectual event in constitutional law when a Justice of the Supreme Court comes forward publicly to explain his theory of judging. Explanation is needed, for by now nobody familiar with the work of the Court believes it confines its rulings to the principles of the historic Constitution. There have always been instances when the Court voted its sympathies rather than anything resembling the Constitution, but over the last half century the divergence between the document and the decisions has sharply increased. Indeed, the criticism that the Court routinely departs from the Constitution’s principles, as they were understood by the men who made them law, is not taken seriously by a majority of the justices or most law school professors.
Members of the public are not so blasé, however, though they believe inconsistent things: both that the Court should stick to the actual Constitution and that any social...
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