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Professor Novak's article' is a much-needed breath of fresh air, because of both its historical approach and its rejection of a paradigm of pure individualism. Professor Novak eloquently reminds us that constitutional theorists of all political stripes are today both more presentist and more individualist than their predecessors. His paper is a gentle suggestion that we might do well to moderate these modern tendencies. Professor Novak's thorough historical examination persuasively debunks the myth of the early nineteenth century as the constitutional parent of the twentieth. Indeed, his paper shows us that comparing the length of a line and the weight of a rock is perhaps a more apt description of comparisons between the constitutional jurisprudence of the two centuries than it is of attempts to balance private rights and public values. Successful as it is, however, Professor Novak's article is only the first step. Moreover, like many attempts to correct prevalent misconceptions, its strength is also its weakness: In his desire to reintroduce the missing concepts of historical knowledge and common or community interests, Professor Novak unintentionally goes too far and undervalues both individualism and presentism.

The main burden of Professor Perry's paper is to demonstrate that an originalist may, but need not, be a minimalist. In the course of this project, Perry reiterates his earlier arguments in favor of originalism. He also tentatively endorses minimalism as a background presumption, suggesting that non-minimalist or aggressive judicial review must be affirmatively justified and should be limited to questions that are "vulnerable to majority sentiment."1 His primary argument in favor of minimalism is a democratic or majoritarian one: as between historically plausible interpretations of the written Constitution, the people and their elected representatives, rather than the unelected judiciary, ought to prevail on policy questions.

We the People is an ambitious book by one of our best constitutional theorists. Part one of a projected three-volume series, it aims at nothing less than a re-envisioning of American constitutional history and promises a new synthesis of law, politics, and history. Ackerman weaves an intriguing story about who we are and who we might be as a people. Unfortunately, Ackerman's tale fails to inspire, because it is mired in a fictional past and envisions a utopian future. In addition, the book ultimately raises more questions than it answers because it provides inadequate criteria to identify the moments in the past that have special constitutional importance.

GENDER JUSTICE is an avowedly liberal tract on the problems of gender discrimination in our society. It seeks to provide an alternative to the visions of both conservatives and radical feminists. The book fails in its liberal mission for some of the same reasons that the new breed of Democrats cannot seem to raise much of a challenge to the Republican ideology currently sweeping the country. The authors endorse many of the policies advocated by conservatives-- they reject affirmative action and comparable worth, for example-- but they do so by means of a liberal, process-oriented approach.

Michael Perry's thoughtful jurisprudential musings in Morality, Politics, and Law get most things just right. His framework of moral knowledge and a constitution of aspirations resonates with much of the best of contemporary moral philosophy and constitutional jurisprudence. When Perry turns to specifics, however, his reasoning weakens considerably. In particular, his discussion of abortion is fundamentally flawed. Perry draws two conclusions about abortion: (1) That the extremely restrictive Texas statute at issue in Roe v. Wade-- which permitted abortion only to save the woman's life -was unconstitutional; and (2) that the Supreme Court went too far when it invalidated virtually all restrictions on pre-viability abortions. Perry argues that the Court should have required all anti-abortion laws to contain three exceptions. Abortion must be permitted if the woman's health is endangered by continuing the pregnancy, if the fetus's life would be short and painful because of a genetic defect, or if the pregnancy was the result of rape or incest.' Professor Perry's first conclusion is indisputable. It is the second conclusion-that elective abortions should be restricted-with which I take issue in this Essay.

Amy Gutmann's Democratic Education might equally well be entitled Republican Education, for its central theme is how to produce true republican citizens-citizens who possess both the ability and the motivation to participate in their deliberative political communities. That such a republican education must take place in a democratic context, however, imposes limits on how educational decisions are made and on what may be taught. Gutmann carefully explores both. The resulting "democratic theory of education" she proposes and examines is a small masterpiece of political theory with implications far beyond the educational context.

As the recent Symposium in these pages indicated, the preliminary debate over the meaning of the ninth amendment is essentially over. Despite the diversity of views expressed in the Symposium, all but one contributor agreed that the ninth amendment does protect judicially enforceable unenumerated rights. The real question now must be how to identify those rights. Only Professor Michael McConnell disputes the conclusion that the ninth amendment allows judges to enforce unenumerated rights. He suggests that neither the history of the Constitution nor sound political theory supports such a reading of the ninth amendment.' Using his article as a focus for this Essay, I would like to do two things: (1) to add to the historical work demonstrating the framers' commitment to judicially enforceable unenumerated rights; (2) to comment generally on the New Right insistence on strict textual limits to judicial activism, which I believe stems from a mistaken view of the judicial process.

Amy Gutmann's Democratic Education might equally well be entitled Republican Education, for its central theme is how to produce true republican citizens-citizens who possess both the ability and the motivation to participate in their deliberative political communities. That such a republican education must take place in a democratic context, however, imposes limits on how educational decisions are made and on what may be taught. Gutmann carefully explores both. The resulting "democratic theory of education" she proposes and examines is a small masterpiece of political theory with implications far beyond the educational context.

There is a tendency in the bicentennial year-and especially this week-to idealize the events of 1787. We tend to presume that the men who wrote the Constitution were near-perfect demigods, who crafted a brilliant and internally consistent document from their own insights. We assume that the Constitution represents the consensus of opinion of those fifty-five men, and even of the population at large in 1787. I want to debunk those myths. I want to talk instead about the problems, about the mistakes, and about the very different visions of government that were represented at the Constitutional Convention. In short, I want to suggest that the drafters of the Constitution stumbled and bungled their way in to the document whose origins we are celebrating here today. That debunking process leaves a problem, however. Once we've debunked the myth and exposed lack of any solid foundation for the Constitution, we are left with a puzzling question. Why has it worked for two hundred years? If the framers were as inept and as wrongheaded as I am going to suggest that they were, how did they create such an effective and long lasting document? That is the main question that I want to answer today, and it is one of the most important questions about the Constitution, because it is what links us to our history.

In seeking to understand and interpret our written Constitution, judges and scholars have often focused on two related issues: how did the founding generation understand the Constitution they created, and to what extent should that understanding be relevant to modern constitutional interpretation? This article will address the first of these questions, but in a manner that profoundly affects the second question as well. I will suggest that the founding generation did not intend their new Constitution to be the sole source of paramount or higher law, but instead envisioned multiple sources of fundamental law. The framers thus intended courts to look outside the Constitution in determining the validity of certain governmental actions, specifically those affecting the fundamental rights of individuals. Like Jefferson Powell's recent scholarship suggesting that those who met in Philadelphia intended their own subjective intent to be irrelevant to later interpretation,' my conclusion makes clear that the framers intended something independent of their own intent to serve as a source of constitutional law.

The breadth and variety of the topics discussed at the 1985 NAWJ Convention raise a troubling question: is there any longer a need for an association of women law judges? While a few of the discussions center around "women's issues,"1 most do not. Such diverse papers as Judicial Performance Evaluation and Management of Complex Litigation would be equally appropriate for a symposium of gender-unspecified judges. This suspicion of obsolescence is not limited to an association of women judges; I have heard similar observations about various formal and informal associations of women law professors and women lawyers, and I suspect that the same question arises in any field women have recently but successfully integrated. As long as women are a beleaguered minority, all-female associations are easily explained and justified by the need to share the special concerns that arise from minority status. As those concerns diminish, however, such associations become apparently more difficult to justify. An association of women judges is defensible, however, if women judges differ significantly enough from male judges to provide a unique asset to the judicial enterprise. That uniqueness can then be nurtured by the give-and-take of annual meetings, and the participants might then continue to contribute even more when they return to the community at large. This essay suggests that women judges are identifiably distinct from their male cohorts in three ways. Women judges make a unique contribution to the legal system by their presence, their participation, and their perspective. The first two of these aspects of the feminization of the judiciary may decrease in significance as discrimination wanes, but the influence of a feminine perspective is independent of the existence of gender discrimination. Thus, I will briefly discuss the contribution women judges make by their presence and their participation, and then address in more depth the feminine perspective. By the "feminine perspective," I do not mean the political agenda ...

Members of the dominant faction of the current Supreme Court are apparently trying to have their cake and eat it, too. In some contexts, the Court uses constitutionally grounded notions of judicial restraint to deny rights-seeking plaintiffs access to the federal courts, while at other times the Court disregards these same notions and reaches out to decide unnecessary issues to restrict further individual rights. This Article has attempted to expose the Court's underlying agenda by examining the implications of these inconsistent lines of precedent. That agenda appears to be twofold: to change the Constitution from a document balanced between majoritarian and countermajoritarian premises to one that is primarily majoritarian, and to transform the role of the Court from the guardian of individual rights to the guardian of majority rule. This Article has also suggested one possible philosophical explanation for this doctrinal shift: it may reflect a move away from a jurisprudence of individual rights and toward a more communitarian theory of law. This communitarian theory is particularly apparent in those cases in which the Court limits individual rights created by the majority for the minority's benefit. In these situations, the Court may be acting to compensate perceived weaknesses in the legislative process; insulated from political pressures, the Court can insure that the silent majority is given a voice, albeit in court rather than in the legislature. Given that community-influenced decisions are a relatively recent phenomenon, there may be some dispute about whether this theory is adequate to explain the doctrinal shift. There should be dispute about whether the theory is adequate to justify it.

What is true of women's writing is also true of women's jurisprudence. This article contends that modern men and women, in general, have distinctly different perspectives on the world and that, while the masculine vision parallels pluralist liberal theory, the feminine vision is more closely aligned with classical republican theory, represented in its various forms by Aristotle, Machiavelli, and Jefferson. A feminine jurisprudence, evident, for example, in the decisions of Justice O'Connor, might thus be quite unlike any other contemporary jurisprudence. Emergence of a feminine jurisprudence might therefore influence whether academic calls for new (or rather recycled) jurisprudential theories based upon our classical republican tradition will ultimately have little impact or will usher in a paradigm shift in moral, political, and constitutional theory.

Being a Supreme Court justice must have been more fun in the eighteenth century than it is today. The caseload was lighter, and the Court was a social as well as a political center., The justices also apparently felt considerably less constrained by formal or informal rules of governance. In a single case in 1796, the Court violated virtually every rule of procedure and canon of construction. Hylton v. United States2 is an obscure taxation case cited occasionally as an unilluminating pre-Marbury example of judicial review.3 It is a charming illustration of the nonchalance with which the early Court approached its constitutional duties.

The equal protection clause, ambiguous in its language and its history,' has over the last three decades been transformed from the "last resort of constitutional arguments' into a significant force in shaping the American response to the continuing challenge of a pluralistic society. This transformation, achieved primarily by the Warren Court, has been effected through development of a multi-tiered theory of equal protection. Beginning with Koremalsu v. United States, the Court has applied heightened scrutiny to those legislative schemes involving suspect classifications or fundamental rights.6 If the legislation involves neither a suspect classification nor a fundamental right, the Court applies minimal scrutiny, asking only whether the legislative scheme bears a rational relationship to a permissible state interest. If one of the factors triggering heightened scrutiny is present, however, the Court demands that the government show both a more significant governmental interest and a tighter fit between the means and the end. The Court thus has adopted a practice of selective judicial activism, identifying suspect classifications and fundamental rights as contexts that trigger a more activist stance. The Court has never clearly articulated the purposes of heightened scrutiny nor sufficiently explained the nexus between the factors that make a classification suspect and the need for both a stronger governmental interest and a tighter fit. One major problem with the current doctrine of selective judicial activism in the equal protection area is a lack of congruence between the justifications offered for context-specific judicial activism and the identification of specific contexts that trigger that activism. This problem takes two forms. Either the justification is persuasive, but the contextual limits are too narrowly circumscribed, or the contextual limits are broad but are not justified in constitutional terms. This Article is an attempt to explain and defend selective judicial activism while showing that the ...