Constitution of Judicial Power

The author of this study claims that the United States Supreme Court is being strangled by the combined forces of skillful enemies and incompetent friends who are united in an inability to "grasp or tolerate constitutional law as an independent moral voice on American politics". He takes on these enemies and friends of the Court, attacking New Right ideas about constitutional interpretation as well as those liberals who have abandoned the classical constitutionalism which justifies Warren-era activism. Barber begins by reviewing the basic arguments of the New Right, paying particular attention to those of Robert Bork and Walter Berns. He then demonstrates that judicial activism, long scorned by the Court's bitterest critics, is part of a constitutional philosophy deeply rooted in "The Federalist Papers" - despite conservatives frequent claims to know the framer's "original intent". Barber seeks to demonstrate that New Right theorists such as Bork, and establishment liberals such as Ronald Dworkin are moral relativists who cannot escape conclusions ("might makes right", for example) that could destroy constitutionalism in America. He argues that the best hope for American freedom is to revive classical constitutionalism - and he explains how new movements in philosophy allow the Court's friends to do that, making the case for moral realism in constitutional interpretation.