The Public Interest

The Supreme Court vs. the Constitution

John Burleigh

Winter 1978

IT is no secret, at least among judicial scholars, that there is a profound and ever-widening gap between “constitutional law” (what the Justices say the Constitution means) and the Constitution itself. It should not surprise us, however, that the Justices continue piously to invoke the Constitution. The authority of nine unelected jurists to strike down laws would be unacceptable in a demoeratic polity, one that is supposed to be “a government of laws, not of men,” unless judicial review were believed to be guided by a faithful attempt to interpret the Constitution, the highest law of the land. Consequently, to support their opinions, the Justices will ignore or even willfully misrepresent the text and history of the Constitution, rather than admit they are revising it.

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