Tag: Modernization

Modernization and Lawlessness: A Reply to Professor Mitchell

David A. Strauss - The University of Chicago Law School

Professor Mitchell’s characteristically thoughtful and incisive comment makes many important points. I also agree with Professor Mitchell that a modernization approach gives political actors an incentive to behave strategically… Read More »

Modernization, Moderation, and Political Minorities: A Response to Professor Strauss

Jonathan F. Mitchell - George Mason University School of Law

The Supreme Court is frequently accused of declaring laws unconstitutional based on little more than the justices’ ideological preferences. This is an especially common criticism of the Court’s capital-punishment, equal-protection, and substantive-due-process jurisprudence, where the justices have made little effort to tie their decisions to anything resembling a neutral principle.
In… Read More »

The Modernizing Mission of Judicial Review

David A. Strauss - The University of Chicago Law School

Constitutional interpretation looks to the past: to an old text, to old precedents, to the views of the founding generations, to tradition. That is the conventional wisdom, at least. Judicial review, as it’s usually conceived, is a matter of using principles rooted in these sources to limit current popular majorities.… Read More »