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Constitutional Interpretation: Reclaiming the High Road


William P. Marshall

Sun, 09/16/2007

In Constitutional Interpretation: Reclaiming the High Road, William P. Marshall, Kenan Professor of Law, University of North Carolina School of Law, exposes the disconnect between conservative rhetoric and jurisprudence over the last thirty years and calls for “a return to judicial decision-making that is perceived as legitimate because it actually is.” Professor Marshall notes that movement conservatives “engaged in a concerted effort to change the political perceptions surrounding judicial decision-making,” criticizing decisions with which they disagreed as “judicial activism” and professing originalism to be the one true faith. Yet, in numerous cases, conservatives abandoned originalism when that methodology did not lead to a politically conservative result. Professor Marshall argues that to remedy this problem, we should not advocate, as some progressives have, that the Constitution justifies “whatever results these progressives believe are appropriate” but rather “return to decision-making that is driven by high jurisprudential principles and not ad hoc results.” Professor Marshall contends, “The Constitution is a progressive document . . . based on principles of freedom, equality and democracy.” Nevertheless, “[i]t is inevitable that a court truly wrangling with numerous questions of constitutional law will reach some results that progressives (or anyone else for that matter) will not like as a political matter.”

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Marshall Vanderbilt Issue Brief 9-2007.pdf191.38 KB