Michael Perry, Prophet of Progressive Collapse

Abstract

Michael Perry’s important first book, The Constitution, the Courts, and Human Rights, argued earnestly for a progressive agenda in which the judiciary would adopt a “noninterpretive” approach to the Constitution in furtherance of expanding human rights. At the time, this progressive project seemed promising. But Perry also argued that existing justifications for the progressive project were unpersuasive, and that the project should instead be founded on a “religious” interpretation of the nation and a “prophetic” conception of the courts’ role. So, what if Perry’s criticisms were cogent but his alternative “religious” justification turned out to be unpersuasive or inadmissible (as Perry’s own retreat from the rationale even within the book itself may have anticipated)? The progressive project, it seems, would be left without any persuasive rationale. And as things have transpired, it was this darker if inadvertent prophecy that has turned out to be prescient.