Michael Perry (Emory University School of Law) has posted Entrenching, Interpreting, and Specifying Human Rights: Some Comments on the U.S. Constitution and Judicial Review on SSRN. Here is the abstract:
This essay is my contribution to a symposium on originalism, to be held at the University of Western Ontario in October 2008. In the essay, I address the question What does it mean – or, at least, what should it mean – to ‘interpret’ the constitutional text? I then explain that one’s answer to that question – even if one’s answer is originalist – does not entail any particular answer to two further, distinct questions:
(1) How large a role, or how small, should the U.S. Supreme Court play in specifying – in rendering more determinate – a constitutional norm that is implicated by, but underdeterminate in the context of, one or another constitutional controversy?
(2) In resolving constitutional controversies, should the U.S. Supreme Court always proceed, at least in part, on the basis of what it believes to be the correct interpretation of the constitutional text?
I conclude this essay with a question I have addressed elsewhere, and to which I will eventually return: In specifying entrenched but contextually underdeterminate human rights norms, should the U.S. Supreme Court take the path of Thayerian deference?