Michael J. Perry (Emory University School of Law) has posted Constitutional Rights, Moral Controversy, and the Supreme Court on SSRN. Here is the abstract:
In my new book–Constitutional Rights, Moral Controversy, and the Supreme Court (Cambridge Univ. Press, 2009)–I examine three of the most disputed constitutional issues of our time: capital punishment, state laws banning abortion, and state policies denying the benefit of law to same-sex unions. I explain that if a majority of the justices of the Supreme Court believes that a law (or other policy) violates the Constitution, it does not necessarily follow that the Court should rule that the law is unconstitutional. In cases in which it is argued that a law violates the Constitution, the Supreme Court must decide which of two importantly different questions it should address: (1) Is the challenged law unconstitutional? (2) Is the lawmakers’ judgment that the challenged law is *constitutional* a reasonable judgment? One can answer both questions in the affirmative.
By focusing on the death penalty, abortion, and same-sex unions, I aim to provide new perspectives not only on moral controversies that implicate one or more constitutionally entrenched human rights, but also on the fundamental question of the Supreme Court’s proper role in adjudicating such controversies.