The Constitution in the Courts

The modern period of American constitutional law - the period since the U.S. Supreme Court outlawed racially segregated public schooling in Brown v. Board of Education (1954) - has brought persistent and vigorous debate about whether the Court has been enforcing the Constitution or whether, in the guise of enforcing the Constitution, the Court has been usurping the legislative prerogative of making political choices about controversial issues. The Court's 1973 decision in Roe v. Wade, striking down restrictive abortion legislation, brought this debate to a fever pitch. The United States Senate hearings on Robert Bork's nomination to the Supreme Court were another of its very public manifestations. Regrettably, the constitutional debate has become highly polemical. Even among professional participants there is much more heat than light. In this book, Michael J. Perry carefully disentangles and then thoughtfully addresses the fundamental issues at the heart of the controversy: What is the argument for judicial review - the practice whereby the Court assesses the constitutionality of political choices? What approach to constitutional interpretation should inform the practice of judicial review? How large or small a role should the Court play in bringing the interpreted Constitution to bear in resolving constitutional conflicts? To what extent are the Court's most controversial modern decisions - such as those about racial segregation, sexual discrimination, abortion, and homosexuality - sound, and to what extent are they problematic? With insightful and balanced answers to these questions, The Constitution in the Courts: Law or Politics makes a major contribution to one of the mostfundamental controversies in modern American politics and law. It is essential reading for lawyers, judges, and scholars and students of law, political science and political philosophy.