Constitution, the courts, and human rights c.1

In the last quarter of a century, the United States Supreme Court has played an unprecedented role in the formulation of human rights, particularly in cases where the Constitution is silent, such as abortion, school busing, and sexual behavior. The Court's constitutional policymaking has touched off a major national debate: should the Court be confined to strict interpretation of the Constitution or should it make value judgments and policy choices? Michael Perry enters the lists persuasively in favor of an activist court on the ground that it serves an indispensable function in our democracy.

Perry's argument is based on a belief that Americans have a deep commitment to 'moral evolution'. Elected officials are ill-suited to furthering this goal, he feels; because they desire re-election, they are unlikely to go beyond the established moral conventions of their constituencies. A politically insulated body of judges, on the other hand, can undertake an insistent moral re-evaluation of certain aspects of public policy and thereby help the American polity achieve moral growth.

In reviewing the controversial human rights cases the Court has taken on and the arguments that have swirled about them, Perry vigorously disputes the constitutional theories of such eminent legal scholars as Robert Bork, Raoul Berger, and John Hart Ely. In a final chapter on the Court's decisions in cases involving "marginal" persons, such as inmates of prisons and mental institutions, he takes issue with the position of Nathan Glazer and other critics of the Court.