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Original Intent, The View Of The Framers, And The Role Of The Ratifiers, Ronald D. Rotunda

Vanderbilt Law Review

For much of its history, the Supreme Court has purported to engage in what is called "interpretive" judicial review. Interpretive review occurs when the Court ...

"ascertains the constitutionality of a given policy choice by reference to one of the value judgments of which the Constitution consists-that is, by reference to a value judgment embodied, though not necessarily explicitly, either in some particular provision of the text of the Constitution or in the overall structure of government ordained by the Constitution."

Justice William Brennan, for example, engaged in interpretive review when he argued in his recent Holmes Lecture that the …