The foundational claim of this essay is that judges at most points in time should act with restraint and should not attempt to resolve contested issues of policy. They should incorporate new policies into the law only when the polity as a whole has already adopted a particular policy or when it is in the process of adopting one. The essay then maintains that there have been three periods in American history—the Revolution and the subsequent decades of constitution-making, the Civil War and Reconstruction, and World War II and its aftermath—when the American public as an entity did adopt policies of liberty, equality, majoritarian democracy, and protection of minority rights. The essay concludes that judges are not only free but indeed are obligated to give operative effect to those policies in deciding cases.
William E. Nelson,
A Response: The Impact of War on Justice in the History of American Law,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol89/iss3/10