The Burden of Judging
It all begins with an idea. Constitutional law is build on the bedrock foundation that courts should defer tot eh democratic process, especially in the context of economic regulations, unless the law touches on “fundamental rights” or affects “discrete and insular minorities.” Three important books on constitutional theory challenge and emphatically reject this principle: The Classical Liberal Constitution by Richard Epstein, Restoring The Lost Constitution: The Presumption of Liberty by Randy Barnett, and Terms of Engagement by Clark Neily.
