The Constitution of Judicial Power

Sotirios A. Barber · Sotirios A.. Barber

Jan 1993 · Johns Hopkins University Press

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"The United States Supreme Court", writes Sotirios A. Barber, "is being strangled by the combined forces of skillful enemies and incompetent friends, forces united in their inability either to grasp or to tolerate constitutional law as an independent moral voice in American politics". In The Constitution of Judicial Power Barber takes on these enemies and friends of the Court, attacking New Right ideas about constitutional interpretation as well as the ideas of liberals who have abandoned the classical constitutionalism that alone justifies Warren-era activism. Barber begins by reviewing the basic arguments of the New Right, with special attention to those of Robert Bork and Walter Berns. He then demonstrates that judicial activism, long scorned by the Court's bitterest critics, is part of a constitutional philosophy deeply rooted in The Federalist Papers - despite conservatives' frequent claims to know the framers' "original intent". Barber shows that New Right theorists, such as Bork, and establishment liberals, such as Ronald Dworkin, are moral relativists who cannot escape conclusions ("might makes right", for example) that could destroy constitutionalism in America. The best hope for American freedoms, Barber argues, is to revive classical constitutionalism - and he explains how new movements in philosophy today allow the Court's friends to do just that. Written in a lively and engaging style, The Constitution of Judicial Power is certain to provoke controversy among constitutional experts and general readers alike. Barber offers a lucid explanation and penetrating analysis of the current debate over the Court - and why it matters. He reaffirms that simple justice - and not"original intent" - undergirds the constitution of judicial power.