A world without judicial review? Not that long ago-when the Left fought tooth and nail to defend the legacy ofthe Warren and (much of the) Burger Courts-the thought of taking the Constitution away from the courts would have been horrific. Witness, for example, Edward Kennedy's depiction of "Robert Bork's America!' as "a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, [and] rogue police could break down citizens' doors in midnight raids." Bork's sin, of course, was embracing a kind of populist constitutional discourse, that is, the notion that the founders "banked a good deal upon the good sense ofthe people" and their elected representatives to sort out the meaning of equality, due process, and the like.
Reanimator: Mark Tushnet and the Second Coming of the Imperial Presidency,
U. Rich. L. Rev.
Available at: http://scholarship.richmond.edu/lawreview/vol34/iss2/2