New York University Public Law and Legal Theory Working Papers

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University of Colorado Law Review, Vol. 72, p. 923, 2001


Politics is the most difficult domain for constitutional law. As practiced in the United States, the aim of constitutionalism is both to provide a foundation for democratic governance and a limitation on the scope of such politics. The Constitution is supposed to enable democratic politics and establish its outer bounds. Yet the original Constitution performed this task only inferentially, leaving most of the details to either subsequent amendments or, more centrally, to judicial interpretation. This in turn leads to a fundamental question: what are the bounds of judicial intervention into the political arena? Although this is an old question, it has clearly been revived and sharpened by the Supreme Court's unprecedented emergence as the dispositive actor in a drama which began as Bush versus Gore, but ended as Bush v. Gore.

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