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Rethinking Constitutional Law

Originalism, Interventionism, and the Politics of Judicial Review

Earl M. Maltz

158 pages, 6 x 9
Cloth ISBN 978-0-7006-0653-5, $29.95

Book Cover ImageConstitutional theory, Earl Maltz argues, has reached a critical impasse marked by a largely unproductive stalemate between originalists and nonoriginalists regarding the proper role of judicial review. It's time, he says, for both sides to rethink their positions if any hope for a more viable model of judicial review is to be realized. This book is his answer to the dilemma.

Maltz reorients the debate between originalists (those who believe that judges should be bound by the original understanding in constitutional adjudication) and nonoriginalists (those who believe the original understanding should not be binding). Advocates of both sides, he shows, generally proceed from three misguided premises: that originalism is linked to both judicial deference and political conservatism; that originalism is the sole alternative to some less deferential approach to judicial review; and that the question of "legitimacy" is the central unresolved issue facing nonoriginalist theorists. This book challenges each of these premises.

Maltz's contribution is threefold. First, going beyond the influential writings of authors such as Raoul Berger and Robert Bork, he reformulates the justification for originalist review and refines originalist theory itself. Second, he argues that a pure originalist approach mandates excessive judicial intervention under the Constitution; as he points out, the same argument that justifies interventionism in individual rights cases might also require the court to limit sharply the power of the federal government to regulate the economy. Third, he shows that--even leaving aside problems of legitimacy--most nonoriginalist theorists have failed to provide a sufficient functional justification for nonoriginalist intervention.

"A lovely piece of work. Maltz addresses the issues with care and a clarity that is often lacking, and if people take his arguments to heart, debate over constitutional matters will be considerably improved."--H. Jefferson Powell, author of The Moral Tradition of American Constitutionalism

"Earl Maltz has injected a needed note of candor and common sense to the important debate on the role of judicial review in our public decision making. With objectivity and discernment, he has usefully debunked more than a little of the conventional wisdom of modern constitutional law scholarship."--Richard S. Kay, William J. Brennan Professor of Law, University of Connecticut

"The best available concise discussion of current constitutional controversies for anyone who would understand the wonders performed by courts in the name of the Constitution. Clear, sensible, and hard headed, it is both fully understandable by the educated layman and challenging to scholarly proponents of judicial activism."--Lino A. Graglia, author of Disaster by Decree: The Supreme Court Decisions on Race and the Schools

EARL M. MALTZ is Distinguished Professor of Law at Rutgers University, Camden, and author of Civil Rights, the Constitution, and Congress, 1863-1869 and Rehnquist Justice: Understanding the Court Dynamic, both from the University Press of Kansas.

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