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Ideologues In Robes

Publication Date: 
April 16, 2012
The Wall Street Journal
Adam J. White

Professor Pamela S. Karlan is briefly mentioned in the following Wall Street Journal article by Adam J. White delving into the role of Supreme Court justices.

To hear Alexander Hamilton explain it, federal judges had the easy job. Urging New Yorkers to ratify the Constitution, he wrote in Federalist 78 that federal judges would exercise "neither force nor will, but merely judgment" in striking down "all acts contrary to the manifest tenor of the Constitution." But what sounded easy in theory proved hard in practice. The Constitution's "manifest tenor" is rarely self-evident; and rarely are judges unanimous in finding a federal law "contrary" to it.

Two and a half centuries later, the debate continues along familiar lines, anchored in dominant schools of constitutional thought. Some urge judges to ascertain and apply the Founding Fathers' original interpretation of the Constitution; others urge a progressive judiciary, expanding or restricting rights to accord with modern circumstances (or at least modern political priorities). These camps and others argue in courts—most recently, over ObamaCare—but also in law schools and the public square, advocating their respective visions of the Constitution and denouncing all others.


Judge Wilkinson's choice of targets is somewhat disappointing. Half the book is devoted to liberal theories—"living constitutionalism" and "political process theory"—that, by his own admission, enjoy little support on the federal bench. Today, "living constitutionalism" is little more than a conservative epithet; prominent scholars Pamela Karlan and Goodwin Liu went out of their way to reject the "living Constitution" in a recent book attempting to resuscitate liberal jurisprudence. Much more productive would have been a focus on this new generation of liberal legal theory, including Justice Stephen Breyer's own books in recent years, "Active Liberty" and "Making Our Democracy Work."