Martin H. Redish & Matthew B. Arnould, Judicial Review, Constitutional Interpretation, and the Democratic Dilemma: Proposing a “Controlled Activism” Alternative

64 Fla. L. Rev. 1485 |

No problem generates more debate among constitutional scholars than how to approach constitutional interpretation. This Article critiques two representative theories (or families of theories), originalism and nontextualism, and offers a principled alternative, which we call “controlled activism.” By candidly acknowledging the judge’s creative role in constitutional lawmaking, controlled activism promises real limits on judicial discretion.

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