Words That Bind: Judicial Review and the Grounds of Modern Constitutional Theory

By John Arthur | Go to book overview
Save to active project


This book is about the philosophical grounding of modern constitutional theory; more particularly, it is an extended discussion of the theory behind judicial review. Why, I will ask, should today's elected officials be bound by words of a document written more than two centuries ago as interpreted by nine unelected judges? Each of the five theories I discuss -- original intent, democratic proceduralism, utilitarianism, Critical Legal Studies, and democratic contractualism -- is described and evaluated in terms of its philosophical commitments as well as its (sometimes only implicit) vision of the justification of judicial review and the nature of constitutional interpretation. Although three of the interpretive theories -- original intent, democratic proceduralism, and Critical Legal Studies -- are familiar, at least in broad outline, to legal theorists, less attention has been paid to the philosophical assumptions and arguments on which each rests. Utilitarianism and contractualism, on the other hand, are well-developed and familiar political theories, but their implications for our understanding of judicial review and constitutional interpretation have heretofore not been fully explored. The book's central purpose, then, is to weave together political philosophy and legal theory by showing how disagreements among various theories of constitutional interpretation depend on deeper, philosophical disputes about the purposes of judicial review and the justification of democratic government itself.

Many individuals and institutions have provided valuable help to me in writing this book. I first became interested in questions of constitutional interpretation while attending a National Endowment for the Humanities (NEH) seminar directed by Walter Murphy in 1983 at Princeton University. I later was lucky enough to get a Law and Liberal Arts Fellowship at Harvard Law School, where I first began working seriously on the manuscript. Most recently I attended another NEH seminar, this one directed by Robert Audi at the University of Nebraska, where I completed the project. Many people have therefore contributed to its development -- some wittingly and some not. I especially want to thank Lew Sargentich, director of Harvard Law School's Law and Liberal Arts Program, for extending my stay at the law school for a second year. Lew's considerable philosophical and legal abilities were also a real benefit to me in the early stages of the book. Others to whom I wish to express special thanks are Robert Audi, Paul Finkelman, Mel Leffler, Frank Michelman, Jim Montmarquet, Richard Nunan, Richard Parker,


Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this page

Cited page

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited page

Bookmark this page
Words That Bind: Judicial Review and the Grounds of Modern Constitutional Theory


Text size Smaller Larger
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen
/ 236

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?