Books, Arts & Manners: Justice Sutherland, One of Us

The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights, by Hadley Arkes (Princeton, 312 pp., $29.95)

CONSTITUTIONAL interpretation is a messy business; it always has been. Since the Supreme Court discovered early in the last century that it could strike down laws repugnant to the Constitution, there has been a lively debate over the proper scope of that power. The precise terms of the debate have changed over time, but the outline has remained the same: Giving judges broad authority to invalidate legislation interferes with the people’s right to govern themselves, transferring power to an unelected, politically unresponsive oligarchy; a narrow power of judicial review abandons individuals and minority groups to the tender mercies of the majority. After almost two centuries of trial and error, we are no closer to developing a comprehensive theory of constitutional adjudication than physicists are to developing a unified field theory.

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Alex Kozinski

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The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights, by Hadley Arkes (Princeton, 312 pp., $29.95)

CONSTITUTIONAL interpretation is a messy business; it always has been. Since the Supreme Court discovered early in the last century that it could strike down laws repugnant to the Constitution, there has been a lively debate over the proper scope of that power. The precise terms of the debate have changed over time, but the outline has remained the same: Giving judges broad authority to invalidate legislation interferes with the people’s right to govern themselves, transferring power to an unelected, politically unresponsive oligarchy; a narrow power of judicial review abandons individuals and minority groups to the tender mercies of the majority. After almost two centuries of trial and error, we are no closer to developing a comprehensive theory of constitutional adjudication than physicists are to developing a unified field theory.