Question: The first book in the “Inalienable Rights” series was Richard Posner’s “Not a Suicide Pact: The Constitution in Times of a National Emergency” (2006). In the editor’s note to that volume, Geoffrey and Dedi Felman wrote: “Rights invite discussion: What is a constitutional right? What are the counterbalancing duties?”
In terms of the Warren Court’s civil rights and civil liberties jurisprudence, what do you see as some of the major counterbalancing duties?
Stone: As a bit of background, I should explain that back in 2004 Dedi Felman, then an editor at Oxford, came up with the idea for the Inalienable Rights series. I had just published “Perilous Times: Free Speech in Wartime” (2004), and Dedi persuaded me to take on the challenge of serving as editor of this series. The goal was to produce a series of books, written by distinguished legal scholars, that would be relatively brief (roughly 40,000 words, lightly footnoted), that would deal with important issues of constitutional law and that would be both interesting to constitutional law experts and accessible to general readers. Dedi left Oxford shortly thereafter, and David McBride has taken on her role in the years since. Initially, we imagined that the series would consist of perhaps six volumes published over eight years. We never imagined that we would publish 20 volumes, with more no doubt to come. The authors in the series have included truly remarkable scholars, including not only the individuals you mention above, but also Cass Sunstein, Pam Karlan, Lee Bollinger, Mark Tushnet, Michael Klarman, and on and on and on.
In terms of your question about “counterbalancing duties,” I assume we were referring most fundamentally to the doctrine of precedent and to the obligation of justices not to reach results merely because they think those results reflect good public policy for the nation, but to honestly ground their decisions in principles of interpretation that are true to the fundamental concerns of specific constitutional provisions and to an approach to constitutional interpretation that is grounded in the aspirations of the Framers and in a principled understanding of the central reasons for judicial review.
As we hope to demonstrate in “Democracy and Equality,” in our view, although the justices of the Warren Court often confronted problematic precedents, they had a deep understanding of the most fundamental reasons for judicial review and of the essential role of our Supreme Court in our constitutional system – most centrally, to make sure that majorities do not disregard the rights and interests of those without the political power to protect themselves, or abuse their power to manipulate the rules of democracy in order to ensure their continued dominance. As we argue in the book, the Warren Court confronted difficult issues of precedent, but did so in a manner that fulfilled the most central reasons for having a Supreme Court in the first place.
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