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Letters: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

Taking the Constitution Away from the Courts
Taking the Constitution Away from the Courts
Date: 09 February 2011, 09:26

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I HEARD Joan Osborne perform Patti Smith’s song at a concert to benefit the political group Voters for Choice on the anniversary of Roe v. Wade, which I attend each year to remind myself of my small role in the Court’s decision. (As a law clerk, I drafted a letter from Justice Thurgood Marshall to Justice Harry Blackmun, which some have thought influenced the structure of Justice Blackmun’s final opinion.) The tension between celebrating a Supreme Court decision finding abortion laws unconstitutional and extolling popular political power is my theme here. We can take the Constitution away from the courts in several ways.We could deny them the final word about the Constitution’s meaning (the subject of chapter 1), or we could deny them any role in Constitutional interpretation whatever (the subject of chapter 7). Chapters 5 and 6 argue that taking the Constitution away from the courts in this sense need not occasion deep concern about the preservation of our liberties. We can also take the Constitution away from the courts and embed it in our own deliberations. Chapters 2, 3, and 4 describe how we can think about the Constitution without having the courts’ decisions to guide us. The overall project is summarized in chapter 8’s description of populist constitutional law.


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