Chemerinsky largely ignores recent writing by liberals and conservatives who fret that when courts too freely overturn legislation, they stifle public deliberation, infantilize the people, and play a legislative role to which they are not suited. These writings have not won a judicial constituency, but they do express a general uneasiness with “living constitution”-style arguments that courts should constrain democratic decisionmaking on the basis of public values that change with the times.
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Friday, January 7, 2011
One Side Now
Eric A. Posner at The New Republic's The Book weblog reviews The Conservative Assault on the Constitution, by Erwin Chemerinsky.