Saturday, January 14, 2006

Prof. Chris Wolfe’s Book is One of the “Top Books on the Constitution”

Robert Bork was the conservative judge who, when nominated for the Supreme Court, had to endure the sort of attacks that have become common whenever a Republican president nominates a conservative judge.

He has produced a very short list of the “Top books on the Constitution,” and on the list is Marquette Political Science Professor Christopher Wolfe’s The Rise of Modern Judicial Review.

Contrary to the nonsense that most students are fed about a “living Constitution,” Bork and Wolfe insist that the Constitution is interpreted to enact the policy preferences of activist judges.

It’s not that the document “grows” and “changes.” That’s a dishonest use of the active voice. The Constitution is changed (passive voice) by judges who very much want to put their policy preferences into effect.

Liberal scholars don’t seriously disagree with this. They may argue that it’s good, or that it’s inevitable that judges put their policy preferences into effect (which is belied by principled judges who do rule that laws they dislike are Constitutional). On that, see Justice Black’s dissent in Griswold.

People like Wolfe and Bork clearly have the intellectual upper hand, so much so that defenses of judicial activism carry the taint of outright intellectual dishonesty.


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