NEW APPROACHES TO CONSTITUTIONAL THEORY Mark Tushnet For a period running from the late 1960s to the early 1990s, Under that approach, courts were to identify and rectify obstrucconstitutional theory in U.S. law schools dealt almost entirely tions in the processes of democratic representation, and then with constitutional interpretation by the courts. Legal scholars' stand aside. According to Ely, this approach reconciled vigorous obsession with interpretive theory arose from the political cirjudicial review -- within its proper domain -- with democratic cumstances of their scholarship. Conservative legal activists cast self-governance, by using the courts to purify the processes of their challenge to the Warren Court's liberal decisions not (simdemocratic representation without supervising the outcome of ply) in terms of disagreement with the results, but in terms of the truly democratic processes. The second popular approach was illegitimacy of the interpretive techniques the Warren Court Ronald Dworkin's invocation of moral and political philosophy used. According to conservatives, the only method of constituto interpret the Constitution's rights-protecting provisions, tional interpretation that could confer legitimacy on the Court's which, after all, did use terms familiar to philosophers. decisions was one that focused almost entirely on the original The disputes between the
The Good Society – Penn State University Press
Published: Jun 1, 2004
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