Constitutional Forbearance - In the Eye of the Beholder?
5 Pages Posted: 1 Jan 2014
Date Written: November 15, 2012
In his insightful article on Constitutional Forbearance, Professor A. Christopher Bryant called for the Supreme Court to demonstrate that constitutional interpretation is not entirely a matter of partisan policy preferences. He observed that the Court’s conservative members almost invariably read the Constitution in ways that please Republicans, while liberal Justices consistently toe the Democratic Party line. Thinking about examples offered by Professor Bryant, however, particularly decisions made by Justice James McReynolds, leads me to wonder whether his article understates to some extent the difficulty of determining what constitutes constitutional forbearance. In other words, while the notion of judges being willing to make decisions contrary to their personal preferences is highly appealing in the abstract, is it really possible for us to know with any certainty when we have witnessed an instance of constitutional forbearance?
Keywords: Constitution, Supreme Court, forbearance, political
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