In the United States, judicial review, the power of courts to declare legislative acts unconstitutional, has had something of a tawdry past. It was after all, the Supreme Court in Dred Scott v. Sandford that prohibited Congress from dealing with slavery, leading, some argue, to the Civil War. So, too, was it the highest court that decreed in Plessy v. Ferguson that racial separation was constitutionally permissible. And, of course, it was the Supreme Court that first created a new right of privacy in Griswold v. Connecticut, then contrived a right to abortion in Roe v. Wade, and, most recently, stumbled on a constitutional right to homosexual sodomy - none of which has textual support in the Constitution itself.

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Copyright © 2005 The Times Literary Supplement Limited. This article first appeared in The Times Literary Supplement, no. 5320 (March 18, 2005): 23.

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