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The Force of Law

by Robert F. Nagel

The Classical Liberal Constitution: The Uncertain Quest for Limited Government, by Richard A. Epstein (Harvard, 704 pp., $49.95)

American conservatives are split into two main camps on the issue of judicial enforcement of the Constitution. One, exemplified by the work of the late Robert Bork, believes our system to be essentially majoritarian and, therefore, is distrustful of courts. This group tends to believe that judges should invalidate statutes only when constitutional text and history warrant it. As a consequence, members of this group — call them legalists — disapprove of the modern Supreme Court’s energetic protection of implied rights, such as the rights to abortion and same-sex marriage, and urge instead stronger protections for textually based principles, such as the right to private property and the limitations on the power of the national government.

The second camp, typified by Judge J. Harvie Wilkinson’s recent book Cosmic Constitutional Theory, is distrustful of abstract, doctrinaire thinking and, therefore, believes that judges should respect and even defer to constitutional meaning that is derived from political institutions and practices. Members of this group — Burkean traditionalists — often oppose the expansive use of judicial power in general, whether it is aimed at enforcing the idea of enumerated national powers or at protecting individual rights.

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