Interpreting the U.S. constitution

pp. 11-30

in: Corlett, Race, rights, and justice, Berlin, Springer, 2009

Abstract

Over the years, the Supreme Court of the United States of America has gained tremendous power. One need only consider that despite the fact that the right of a pregnant woman to an abortion is nowhere found in the U.S. Constitution, the Court, for better or for worse, "discovered" such a right. While some would seek to curtail the Court's power to create or construct such law to protect a "new" right not found explicitly in the Constitution, others would seek to support the Justices' power in constructing law where the Constitution is silent and where vital issues are at stake. It would appear, then, that the debate is in large part between a descriptive construal of judges as historians of the meaning of the Constitution's text and a normative account of the judge as moralist where the Constitution's text has gaps and does not straightforwardly address a case at hand.