Judicial Review, Constitutional Interpretation, and the Democratic Dilemma: Proposing a “Controlled Activism” Alternative

Authors

Martin H. Redish
Matthew B. Arnould

Abstract

No problem generates more debate among constitutional scholars than how to approach constitutional interpretation. This Article critiques two representative theories (or families of theories), originalism and nontextualism, and offers a principled alternative, which we call “controlled activism.” By candidly acknowledging the judge’s creative role in constitutional lawmaking, controlled activism promises real limits on judicial discretion.

Recommended Citation

Martin H. Redish and Matthew B. Arnould, Judicial Review, Constitutional Interpretation, and the Democratic Dilemma: Proposing a “Controlled Activism” Alternative, 64 Fla. L. Rev. 1485 (2012).
Available at: https://scholarship.law.ufl.edu/flr/vol64/iss6/1