EXCERPT: 'Making Our Democracy Work'

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The Court's role in protecting individual liberties presents special challenges to these relationships, some of which are discussed in Part III. I describe how this protection often involves a search for permanent values underlying particular constitutional phrases. I describe a method (proportionality) useful in applying those values to complex contemporary circumstances. And I discuss the Japanese internment during World War II as well as the recent Guantánamo cases to illustrate the difficulty of finding a proper balance between liberty and security when a president acts in time of war or special security need. Throughout, I argue that the Court should interpret written words, whether in the Constitution or a statute, using traditional legal tools, such as text, history, tradition, precedent, and, particularly, purposes and related consequences, to help make the law effective. In this way, the Court can help maintain the public's confidence in the legitimacy of its interpretive role.

Creating a Workable Democratic Government

The various approaches that I discuss in Parts II and III fit together. They constitute a set of pragmatic approaches to interpreting the law. They provide a general perspective of how a pragmatically oriented judge might go about deciding the kinds of cases that make up the work of the Supreme Court. I do not argue that judges should decide all legal cases pragmatically. But I also suggest that by understanding that its actions have real- world consequences and taking those consequences into account, the Court can help make the law work more effectively. It can thereby better achieve the Constitution's basic objective of creating a workable democratic government. In this way the Court can help maintain the public's confidence in the legitimacy of its interpretive role. This point, which returns full circle to Part I, is critical.

At the end of the day, the public's confidence is what permits the Court to ensure a Constitution that is more than words on paper. It is what enables the Court to ensure that the Constitution functions democratically, that it protects individual liberty, and that it works in practice for the benefit of all Americans. This book explores ways in which I believe the Court can maintain that confidence and thereby carry out its responsibility to help ensure a Constitution that endures.

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