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12 Bimonthly Rev. L. Books 1 (2001)

handle is hein.journals/bimrvlab12 and id is 1 raw text is: Bimonthly Review Of Law Books http://www.law.suffolk.edu/faculty/ebander/indexl0-12-00.html Volume 12 Number 1 January-February 2001 AN INTERVIEW WITH G. EDWARD WHITE, PROFESSOR OF LAW, UNIVERSITY OF VIRGINIA LAW SCHOOL, and author of: The Constitution and the New Deal. G. Edward White. Cambridge, Harvard University Press, 2000. 385 p. 0-674-00341-1 $45.00 Q: I would characterize your book as a blend of history, constitutional law, and jurisprudence. Do you agree with that characterization? A: My focus in the book is primarily historical, but it is, certainly fair to characterize it as having implications for contemporary constitutional law and jurisprudence. I don't think that decisions in constitutional law can be isolated from the context in which those decisions are made, which necessarily includes the historical underpinnings of those decisions. In other words, I believe that contemporary constitutional decisions are made against a backdrop of decisions in the past, and those past decisions play a role in framing the issues at stake in current cases. I also don't think that the judicial interpretations of the Constitution which are advanced in current cases can be isolated from ideas about the proper role for judges as constitutional interpreters. So, for me, history and jurisprudence are vital, ongoing dimensions of constitutional law. There is a constant dialogue, in constitutional law, between the past and the present, and that dialogue includes the interplay between past and present theories of what constitutional interpretation by judges is, or should be. Let me give an illustration of that general hypothesis from the book. I am suggesting in the book that part of the reason the relationship between the New Deal and changes in early twentieth-century constitutional law has been widely misunderstood is that the implicit criteria for effective constitutional interpretation by judges have changed, resulting in some early twentieth-century judges, and their decisions, being seen as heroic and visionary, and other judges, and their decisions, being seen as obstructionist and benighted. The orthodox view of the role of the judge in constitutional interpretation, as late as the 1920s, was that judges, in a republican form of government with a Constitution as the supreme source of law, were the guardians of the fundamental principles of the Constitution against encroachment by other branches. If one held this view, the New Deal's efforts to expand the powers of Congress and the Executive against the states, or to create federal administrative agencies whose decisions would have comparatively little legislative oversight, appeared as massive deviations from the constitutional status quo that would trigger sharp judicial scrutiny. But if judges are seen differently--as a set of political actors in a democratic society who lack the popular accountability of legislators or the Executive--the same New Deal innovations appear to be popular mandates that require accommodation from a living Constitution, whose provisions are expected to be reinterpreted in accordance with the changing conditions of American life. Unelected judges should be very cautious in substituting their views of the meaning of the Constitution--which amount to the views of nine largely unaccountably human beings--for those of legislative majorities or popularly elected Executives. That was the view of the role of the judge in constitutional interpretation which became orthodoxy in American In This Issue: Interview with G. Edward White .................. Interview with Michael Rustad...... ............ C yberlaw ........................................................... Authors of Books Reviewed..................................... B ooks R eview ed................................................... B ooks R eceived .................................................... Nota Bander................................ Bimonthly Review ofLaw Books / January-February 2001 .5 '.5 20 20 20 20

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