Interpretivism, Freedom of Expression, and Equal Protection
Interpretivism, Freedom of Expression, and Equal Protection MICHAEL J. PERRY* I. A. We in the United States are philosophically committed to the political prin- ciple that governmental policymaking-by which I mean simply decisions as to which values among competing values shall prevail, and as to how those values shall be implemented'-ought to be subject to control by persons accountable to the electorate.2 As a general matter, a person is accountable to © Michael J. Perry 1981. * Professor of Law, The Ohio State University. A.B., 1968, Georgetown University; J.D., 1973, Columbia University. This Article is part of a larger work-in-progress, which will be published as a book by the Yale University Press in 1982, and which is tentatively titled THE CONSTITUTION, THE COURTS, AND HUMAN RIGHTS: AN INQUIRY INTO THE LEGITIMACY OF CONSTITUTIONAL POLICYMAKING BY THE JUDICIARY. Another part will be published in another symposium on judicial review. See Perry, Noninterpretive Review in Human Rights Cases: A Functional Justification, 56 N.Y.U.L. REV. - (1981). I. Cf. Hazard, The Supreme Court as a Legislature, 64 CORNELL L. REV. 1, 2 (1978): By a -legislature," I mean a body whose chief function in government is to formulate general rules of law that primarily reflect the notions of utility and value held by its members. Such a body is to be distinguished from a trial court, which applies law received from legally superior sources; from an administrative agency, which, in its rule-making capacity, formulates policy only within the limits of its organic statute; and from a "traditional" appellate court, which, in formulating law, is guided primarily by precedent.
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