The Public Interest

Taking the Constitution Seriously

Michael S. Greve

Fall 1986

THROUGHOUT AMERICAN HISTORY, the exercise of judicial review has been accompanied by debates about its legitimacy and proper scope. Liberalisms tension between majority rule and individual rights has framed the question; ideological sympathies have usually supplied the answer. Since Brown v. Board of Education, virtually the entire legal profession has celebrated judicial forays into defining new constitutional rights, supporting “public interest” litigation, and shaping remedies that required continual judicial oversight. Just as persistently, conservatives have pointed out that the constitutional moorings of judicial rulings concerning abortion, busing, and racial quotas are fragile at best, and that, without a sound constitutional basis, unelected judges have no business interfering with democratically adopted policies.

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