Notes on the Role of Judicial Review, the Expansion of Federal Power, and the Structure of Constitutional Rights
![handle is hein.journals/ylr99 and id is 1721 raw text is: Notes on the Role of Judicial Review,
the Expansion of Federal Power, and the
Structure of Constitutional Rights
Constitutional Cultures: The Mentality and Consequences of
judicial Review. By Robert F. Nagel.* Berkeley: University of
California Press, 1989. Pp. xi, 232.
Douglas Laycockt
Constitutional Cultures contains many shrewd insights, and at least
one spectacular insight. Every lawyer interested in the Constitution should
read it. But read it only for specific insights, taken one at a time. The
theory by which Nagel tries to unify these insights is part of the problem,
not a step towards a solution.
Thus, the book's whole is very much less than the sum of its parts. The
insights are interspersed with polemic against judicial review in general
and liberal judges in particular, blaming judges for all our constitutional
ills and most constitutional change. The polemic is supported by a re-
markably selective marshalling of history and examples.
The book is difficult to summarize, in part because of its inductive
style, and in part because it finds so many different things wrong with
judicial review. The power of Nagel's argument is in his cumulation of
examples of judicial review being done in ways he does not like. But not
all of the examples seem consistent. Thus, he generally attacks the Court
for trying to do too much, but he sometimes attacks the Court for doing
too little.1 He offers only the most conclusory statement of what he thinks
the Court should do instead,2 and gives no hint of how the Court should
explain the results he would prefer. It is not clear whether he thinks that
* Moses Lasky Professor of Law, University of Colorado School of Law.
t Alice McKean Young Regents Chair in Law, The University of Texas at Austin. I am grateful
to Harold Bruff, Sanford Levinson, L.A. Powe, and Jay Westbrook for helpful comments on earlier
drafts, and to Dana Elfin for research assistance. This Book Review adheres to The Yale Law Jour-
nal's custom of capitalizing Federal and of not capitalizing state. This is not my custom, and I do
not intend any implication about the relative dignity of state and Federal governments.
1. R. NAGEL, CONSTITUTIONAL CULTURES: THE MENTALITY AND CONSEQUENCES OF JUDI-
CIAL REVIEW 27, 55-57, 60-61 (1989) [hereinafter cited by page number only].
2. P. 3.
1711](ViewImageLocal?handle=hein.journals/ylr99&div=73&collection=journals&method=preview&ext=.png&size=3)
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Notes on the Role of Judicial Review, the Expansion of Federal Power, and the Structure of Constitutional Rights
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