The Public Interest

The Charismatic Constitution

Jeremy Rabkin

Fall 1983

FEW legal scholars these days believe that constitutional law need have any actual connection with the Constitution. Raoul Berger, along with a few other legal antiquarians, has compiled a series of powerful scholarly works demonstrating that the most celebrated Supreme Court decisions of recent decades are at odds with the original understanding of the Constitution. None of our leading constitutional scholars has even thought it worthwhile to offer a response.  They can scarcely be troubled to notice how little connection today’s “public law” has with any defensible conception of law in general. Yet self-styled defenders of “civil rights” and “civil liberties” still march under the banner of the Constitution, as “public interest” champions invariably denounce President Reagan’s regulatory appointees for disregarding “the law.” And most constitutional scholars have been quite willing to go along.

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