The Art of JudgingBook - 1987
The single most important issue in American constitutional law is the role the Supreme Court should play in interpretation of the constitution. This issue has been a source of controversy since at least 1803, when Chief Justice John Marshall proclaimed that the Supreme Court could declare acts of Congress unconstitutional. But public attention has been refocused by the recent debate between Attorney General Edwin Meese and Supreme Court Justice William Brennan. The Attorney General admonished the Justices to confine themselves to strict construction of the Constitution-to apply the Constitution as the framers intended. Justice Brennan rejected this as errant and arrogant because the framers had certainly not thought about the specific problems facing the country today.
In The Art of Judging, Professor James A. Bond characterizes this controversy as a debate between advocates of two different styles of judging. Judicial craftsmen look backward for guidance: to the text of the Constitution, the original understanding of that text, and the historical experiences of the American people. Judicial statesmen look forward for guidance: to moral and political ideals and notions of the public good. And only the former style, Professor Bond argues, can preserve both the rule of law and constitution in a democracy. Judicial statesmanship undermines the power of the majority to make the law and thereby lessens people's willingness to accept constitutional limitations on the majority rule that make it palatable to those in the minority. But judicial craftsmanship respects the authority of the people at the same time that it enforces constitutional limitations on that authority.