Gary Lawson and Guy Seidman’s important new book, “A Great Power of Attorney”: Understanding the Fiduciary Constitution, seeks to explain what the Constitution of the United States is. While that might appear to be a goal that could only be achieved with a massive tome (or perhaps several of them), the book runs about 200 pages and is focused narrowly on the question of what kind of document “We the People” ratified in 1788. The Constitution has been called a contract, a compact, a covenant, a charter, and (by one of the coauthors in a previous writing) a recipe—all of which…
Does Judicial Engagement Empower Progressives? Answering Professor Weiner’s Challenge
Professor Mark Tushnet is nothing if not candid. In a series of posts written for the Balkinization legal site, Tushnet exhorts his fellow Progressives to look around, recognize that a majority of appellate judges are now Democratic appointees, and abandon “defensive crouch liberalism.” Instead of “looking over their shoulders for retaliation by conservatives,” Tushnet proposes (among other things) that Progressives compile lists of Supreme Court cases “to be overruled at the first opportunity” on the grounds that they were “wrong the day they were decided,” and take a “hard-line approach” with conservatives in the culture wars.
Taming the Law’s Coercion
“To do things by law is to do them by force.” So writes Professor Tara Smith in the introduction to her incisive and important new book, Judicial Review in an Objective Legal System, reminding us of the gravity of the stakes involved in judicial review. A court’s decision to uphold government conduct may result in the deprivation of liberty, property, or even life. Carrie Buck (and more than 60,000 other young Americans deemed “socially inadequate” by predatory state health boards) may be forcibly sterilized in the name of eugenics purposes. Fred Korematsu (and 120,000 other American citizens of Japanese ancestry) may…
