Essay by John Denvir
For over a decade now, Michael Perry has worked at creating a constitutional jurisprudence that is both reformist and responsible. It is reformist in the sense that it gives the Supreme Court leeway to invalidate some politically controversial legislation; the jurisprudence is responsible because courts will not preempt the legislature's role as the primary policy maker in the American democracy. In 1982, in a well-received book, Perry made the controversial claim that constitutional practice at its best represents the “institutionalization of prophecy.” Later, in his contribution to a 1985 symposium on legal interpretation, Perry extended his reliance on religious imagery: he posited an analogy between the Court's interpretation of the Constitution and a religious community's interpretation of a sacred text. In each context, political or religious, the community was interpreting its “tradition”:
By tradition I mean a particular historical narrative, in which the central motif is an aspiration to a particular form of life, to certain projects, goals, ideals, and the central discourse is “an historically extended, socially embodied argument” about how that form of life is to be cultivated and revised.
This formulation certainly allowed adequate leeway for judicial reformist initiatives. Still it left the problem of whether Perry's interpretive methodology (“a matter of reason-giving that presupposes a context of shared beliefs”) yields answers “hard” enough to qualify as politically responsible. Can constitutional theory answer that form of moral skepticism which would argue that judicial “choice among competing values is . . . arbitrary, . . . a matter of mere taste or preference, . . . a matter of purely personal subjectivity?”
About the Author
John Denvir. Professor of Law, University of San Francisco.
Citation
63 Tul. L. Rev. 1423 (1989)