Books, Arts & Manners: Prophets without Portfolio

The Constitution, the Courts and Human Rights By Michael J. Perry Yale, 253 pp., $24 In a recent and important essay in these pages, Judge Robert Bork observed that most of the people who teach constitutional law at America’s most prestigious law schools can be characterized as “noninterpretivists.” Some readers must have been surprised to learn that there can even be a noninterpretive theory of constitutional interpretation. Others, unable to be shocked at anything that happens in a university, must yet have wondered how noninterpretivism came to be the dominant school of constitutional jurisprudence. An idea whose very name resonates with irony seems susceptible of easy refutation.

Arguing against the noninterpretation of the Constitution, however, is like trying to refute a pudding. To begin with, few constitutional scholars admit to being noninterpretivists. Rather, they defend their favorite Supreme Court decisions (the most widely debated is Roe v. Wade, in which the Court discovered a right to abortion; but racial-balance busing, the demise of school prayer, and some of the newer and shinier rights of criminal defendants receive honorable mention) by reference to expansive and arcane definitions of the words “interpret” and “Constitution.” Laws passed by elected legislatures can be nullified by life-tenured justices because they are said to be imposing not their own values but those constitutionalized by the Founders. Yet the justices are not bound by what the Founders thought they were constitutionalizing, since the law must change with the times.

GR

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Grover Rees III

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The Constitution, the Courts and Human Rights By Michael J. Perry Yale, 253 pp., $24 In a recent and important essay in these pages, Judge Robert Bork observed that most of the people who teach constitutional law at America’s most prestigious law schools can be characterized as “noninterpretivists.” Some readers must have been surprised to learn that there can even be a noninterpretive theory of constitutional interpretation. Others, unable to be shocked at anything that happens in a university, must yet have wondered how noninterpretivism came to be the dominant school of constitutional jurisprudence. An idea whose very name resonates with irony seems susceptible of easy refutation.

Arguing against the noninterpretation of the Constitution, however, is like trying to refute a pudding. To begin with, few constitutional scholars admit to being noninterpretivists. Rather, they defend their favorite Supreme Court decisions (the most widely debated is Roe v. Wade, in which the Court discovered a right to abortion; but racial-balance busing, the demise of school prayer, and some of the newer and shinier rights of criminal defendants receive honorable mention) by reference to expansive and arcane definitions of the words “interpret” and “Constitution.” Laws passed by elected legislatures can be nullified by life-tenured justices because they are said to be imposing not their own values but those constitutionalized by the Founders. Yet the justices are not bound by what the Founders thought they were constitutionalizing, since the law must change with the times.