Constitution in the Courts

In the modern period of American constitutional law—the period since the U.S. Supreme Court outlawed racially segregated public schooling in Brown v. Board of Education (1954)—there has been a persistent and vigorous debate in the United States about whether the Court has merely been enforcing the Constitution or whether, instead, in the guise of enforcing the Constitution, the Court has really been usurping the legislative prerogative of making politicalchoices about controversial issues. In this book, Professor Perry carefully disentangles and then thoughtfully addresses the various fundamental issues at the heart of the controversy: What is the argument for "judicial review"? What approach to constitutional interpretation should inform the practice ofjudicial review? How large or small a role should the Court play in bringing the interpreted Constitution to bear in resolving constitutional conflicts? To what extent are the Court's most controversial modern decisions—for example, decisions about racial segregation, discrimination based on sex, abortion, and homosexuality—sound; to what extent are they problematic? The Constitution in the Courts is a major contribution to one of the most fundamental controversies in modern Americanpolitics and law.

"Rewarding...Perry's argument contains its own corrective, pointing us back to first things, and especially to the meaning of constitutional democracy. And it is Perry's speical grace to treat politics with a high dignity it deserves and rarely receives."—Commonweal, "One of the most thoughtful discussions to date of the Supreme Court's role in constitutional adjudication."—Choice, "The Constitution in the Courts is the finest book in constitutional theory since John Hart Ely's Democracy and Distrust. At last, a scholar has responded to Robert Bork on Bork's own terms—with devastating results for Bork's positions. Perry's wonderful new book will help shape constitutional theory into the 21st century."—Rodney K. Smith, University of Montana, "Michael Perry has not just contributed to contemporary constitutional theory. He is one of a handful of writers who have, more or less, created it. In this book he has clarified better than ever before his view of the relationship of law, interpretation and the judicial role. In the future anyone who thinks seriously about constitutional law will have to deal with this work—to elaborate it or to contend with it."—Richard S. Kay, University of Connecticut, "No one thinking or writing about constitutional theory today (or for the last fifteen years) performs either task more carefully, clearly or cogently than Michael Perry. This book impressively presents and defends a conceptual and methodological framework for judicial review and constitutional adjudication. To read it carefully is to understand why thinking seriously about these matters is so intellectually engaging and so important."—Richard B. Saphire, University of Dayton