Document Type

Article

Publication Date

2022

Publication Citation

71 Emory Law Journal 1365 (2022)

Abstract

In this Essay, I explore, compare, and evaluate two theoretical models of judicial review in individual rights cases, each proposed by Professor Michael J. Perry, albeit in books separated by three and a half decades. In his 1982 book, The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary, Early Perry embraced an aggressive form of judicial activism, urging the Supreme Court to test political judgments through an open-ended search for political-moral truth. Contemporary Perry, by contrast, takes a very different approach. In his 2017 book, A Global Political Morality: Human Rights, Democracy, and Constitutionalism, Contemporary Perry advocates an originalist, but novel and nuanced, model of judicial review. Notably, he contends that there is a global political morality of human rights and that this global morality should influence the interpretation of American constitutional law. I am critical of Early Perry but find Contemporary Perry’s theory attractive, albeit with caveats.

I begin the Essay by identifying three criteria for evaluating competing models of judicial review in individual rights cases: (1) majoritarian self-government, (2) judicial objectivity and competence, and (3) functional justification. Using these criteria, I then assess Early and Contemporary Perry in turn. I conclude that Early Perry’s posited search for political-moral truth provided a compelling functional justification for his model of judicial review but that, conversely, the model faltered badly under my remaining criteria—majoritarian self-government and judicial competence and objectivity. Turning to Contemporary Perry, I find that the model of judicial review that he proposes, viewed in the abstract, would appear to serve a powerful function—bringing American constitutional law into closer alignment with the political morality of human rights—even while also accommodating majoritarian self-government and the need for judicial objectivity and competence, thus satisfying each of my three criteria to a substantial degree. Moving from an abstract account to a more fine-grained analysis, however, I go on to argue that Contemporary Perry’s model, as elaborated and applied, might not be as objective as it seems, a weakness that also tends to undermine the model’s compliance with the criterion of majoritarian self-government. Accordingly, my overall assessment of Contemporary Perry is positive but qualified.

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