January 17, 2014

How rational basis (d)evolved into a Get Out Of The Constitution Free Card

By How rational basis (d)evolved into a Get Out Of The Constitution Free Card

I’ve said that the chief accomplishment of Progressive constitutional theory was to prioritize democracy over liberty as the central constitutional value. A consequence of this shift was the creation of a general theory of “judicial restraint,” which was enshrined into constitutional law in the New Deal era. There’s one aspect of this story that I didn’t have space to get into in The Conscience of The Constitution, but which is particularly interesting and important—and I think it’s something VC audiences will appreciate.

Read the rest at The Volokh Conspiracy…

What to read next