Constitutional Law as 'Normal Science'
Constitutional Commentary, Vol. 21, 2004
38 Pages Posted: 25 Oct 2004
The United States Supreme Court has been vigorously attacked in recent years on the grounds of judicial activism. The accusations often center on its work in the hot button areas of substantive due process and equal protection.
This essay argues that the claims of activism are greatly exaggerated. It takes the 2002 term - which included the higher education affirmative action cases and Lawrence v. Texas - as a template, and demonstrates that the decisions followed a pattern of conservative interpretation in routine matters and cautious dynamism on the margins of doctrinal categories.
The paper also argues that the vast range of issues that reach the Court under the umbrellas of equal protection and due process defy efforts to capture in one formula the meaning of irrational government action. Consequently, the Court has prudently and wisely coined doctrine that balances our shared interest in policing irrational governmental activity with our interest in allowing democratic processes to unfold without undue judicial interference. It has resisted legal petrification in important respects, but in most cases it simply and unanimously upholds government regulation. That is, the democratic skies are not falling - and the angels of liberty have not landed in America - despite the fears or hopes of many Americans.
Keywords: Constitutional theory, rational basis, equal protection, due process, judicial activism, judicial review
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