Article by Wm. Bradford Reynolds
Professor Michael J. Perry's book, Morality, Politics, and Law, is a badly disjointed collection of six essays, not a single, continuous argument. It contains two appendices, one of which is a lengthy statement by the American Lutheran Church that is, at best, only marginally relevant to the fifth chapter. The author's style makes an already difficult task all the more cumbersome. His overuse of extensive block quotations from other authors' works is a distraction that too frequently interrupts the flow of his discourse, and he tries too hard to sprinkle his prose with the conceits and jargon now fashionable in the most liberal of academic circles.
I would not recommend Professor Perry for light bedtime (or even heavy daytime) reading. For those who do manage to endure the first five chapters, there is little reason for excitement in chapter six—except that the end is in sight.
Perry spends this sixth and final chapter arguing the case against originalism and in favor of an expansive reading of the Constitution and laws made by legislators. Those of us quite convinced that the role assigned to judges by our Founding Fathers was intended to be far more limited—judges are to interpret law, not make it—can nevertheless sleep well. Perry is neither persuasive nor even very thought-provoking.
In the sixth chapter, Professor Perry argues that the Constitution not only has its original meaning—the meaning that the authors intended to convey, and by their choice of words did in fact convey to their contemporaries—but that it also has become a symbol of the basic principles of the American political and legal tradition. Perry presumes that all members of American society adhere to a set of more-or-less abstract principles that he calls “aspirations.” Thus, for him, the courts' interpretive activity encompasses a search for the “aspirational meaning” of the constitutional text by looking to “constitutional precedent” and to “the ways in which political controversies, especially major ones, have been resolved—the story of the New Deal, for example, comes to mind.” Perry makes quite clear that the search for “aspirational meaning” invites the judges to pick and choose the particular legal and political victories won by the ideological forces with which they sympathize, and to shape the case law so as to entrench and extend those victories. Judicial decisionmaking thus becomes (unapologetically, for Perry) politicized and judges arrogate to themselves broad governmental powers.
About the Author
Wm. Bradford Reynolds. Assistant Attorney General for Civil Rights, United States Department of Justice, 1981-1988; Counsellor to the Attorney General, 1987-1988.
Citation
63 Tul. L. Rev. 1541 (1989)