Taking the Con Out of Con. Law

SIGNS of crisis dominate the current landscape of constitutional law. Bush v. Gore may have chosen a president, but it left an open wound in the body politic. Prominent Democrats—including Judge Abner Mikva—have urged a senatorial moratorium on any Bush Supreme Court nominees until another presidential election removes his ostensible stain of illegitimacy. Worse still, major legal intellectuals like Michael McConnell languish in judicial-nomination limbo because of the newfound senatorial insistence on “mainstream” jurists for the federal courts. Harvard’s Laurence Tribe has testified that conscientious Democratic senators should put ideological considerations front and center in deciding on Bush nominees.

Tribe’s call for ideological candor brings into public view matters long shrouded in political darkness. Ideological purity, however, is a two-edged sword: Democrats, like Republicans, regard only their opponents’ decisions as tainted by politics. Neither side can hope to make intellectual progress on its agenda without some neutral account of what the Constitution, properly construed, requires; but that elusive baseline depends as much on what is brought to the text as on what can be found in it.

About the Author

Richard A. Epstein

Richard A. Epstein is the Laurence A. Tisch Professor of Law at NYU School of Law, the Peter and Kirstin Bedford Senior Fellow at the Hoover Institution, and the James Parker Hall Distinguished Service Professor of Law Emeritus and a senior lecturer at the University of Chicago. His many books include The Dubious Morality of Modern Administrative Law.

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SIGNS of crisis dominate the current landscape of constitutional law. Bush v. Gore may have chosen a president, but it left an open wound in the body politic. Prominent Democrats—including Judge Abner Mikva—have urged a senatorial moratorium on any Bush Supreme Court nominees until another presidential election removes his ostensible stain of illegitimacy. Worse still, major legal intellectuals like Michael McConnell languish in judicial-nomination limbo because of the newfound senatorial insistence on “mainstream” jurists for the federal courts. Harvard’s Laurence Tribe has testified that conscientious Democratic senators should put ideological considerations front and center in deciding on Bush nominees.

Tribe’s call for ideological candor brings into public view matters long shrouded in political darkness. Ideological purity, however, is a two-edged sword: Democrats, like Republicans, regard only their opponents’ decisions as tainted by politics. Neither side can hope to make intellectual progress on its agenda without some neutral account of what the Constitution, properly construed, requires; but that elusive baseline depends as much on what is brought to the text as on what can be found in it.

About the Author

Richard A. Epstein

Richard A. Epstein is the Laurence A. Tisch Professor of Law at NYU School of Law, the Peter and Kirstin Bedford Senior Fellow at the Hoover Institution, and the James Parker Hall Distinguished Service Professor of Law Emeritus and a senior lecturer at the University of Chicago. His many books include The Dubious Morality of Modern Administrative Law.