The October 2008 Term: First Amendment and Then Some

Liberals must acknowledge a dirty little secret about American constitutional law; a secret that the Warren Court made apparent, though it had existed from the day John Marshall asserted the power of judicial review in a Constitution that says nothing about it. The secret is that there is no serious theory explaining or justifying what courts actually do when they strike down a statute as unconstitutional. The Warren years were enormously important in moving the country forward. I do not know what we would have done without the wisdom and courage of the Court.

But when you start looking for jurisprudential theory to explain what it was that the Warren Court was actually doing when it re-wrote most of American constitutional law, and what it has been doing during the Rehnquist and Roberts Court's attempted counter-reformation, when it re-wrote the rest, it is clear that there is neither textual support in the Constitution, nor a consensus political theory, that justifies much of judicial review.