Interpretive and Noninterpretive Constitutional TheoryThe Constitution, the Courts, and Human Rights. Michael J. PerryConstitutional Fate: Theory of the Constitution. Philip Bobbitt

Abstract

The constitution declares itself to be Law of Land, and judges must enforce law. emphatically province and duty of judicial department to say what law is, declared Chief Justice Marshall for a unanimous Supreme Court in 1803.1 If two laws conflict, he continued, the courts must decide on operation of each. And, if a law be in opposition to constitution, then the constitution and not such ordinary act, must govern case to which they both apply. Thus was born American doctrine of judicial of constitutionality of legislative and executive actions. It countermajoritarian, and its acceptability in a democracy depends heavily on what Supreme Court judges declare meaning of constitution to be, especially its broad and somewhat vague phrases. Michael Perry and Philip Bobbitt agree that Supreme Court's constitutional interpretation can affect legitimacy of institution of judicial review. Indeed, after distinguishing judicial from (a distinction to be considered later), Perry boldly asserts that legitimacy of judical is problem of contemporary constitutional theory.2 His dedicated to an attempt to articulate a functional justification for noninterpretive with respect to human rights issues.3 Equally convinced, Bobbitt opens his asserting that central issue in constitutional debate of past twenty-five years has been legitimacy of judicial review and that his book an examination of question of such legitimacy.4 The distinction between and crucial to Perry's arguments in his widely acclaimed because, for him, legitimacy of interpretive is not a particularly difficult