Radicals in Robes: Why Extreme Right-Wing Judges are Wrong for America

Abstract

This book argues that four different approaches to constitutional law have long organized constitutional debates in the United States. These approaches are majoritarianism, which gives the elected branches the benefit of every doubt; minimalism, which favors narrow, unambitious rulings; perfectionism, which attempts to make best constructive sense out of the constitutional text; and fundamentalism, which tries to interpret constitutional provisions to fit with how they were understood at the time of ratification. Justice Holmes was a prototypical majoritarian; Justices Frankfurter and O'Connor were minimalists; Justice Brennan was a perfectionist (and so too Ronald Dworkin on the academic side); Justice Thomas is a fundamentalist. These approaches are brought to bear on such diverse issues as the right of privacy, the right to marry, affirmative action, the separation of powers, federalism, religious liberty and establishment, and the President's power to protect national security. Perfectionism, long favored by liberals, is rejected on the ground that it would cede excessive power to judges. Fundamentalism, now favored by some conservatives, is rejected on the ground that it would radically destabilize our rights and our institutions (and also run into historical and conceptual muddles). Minimalism is defended as the best of the alternative approaches.