Our Unsettled Constitution A New Defence of Constitutionalism and Judicial Review Louis Michael Seidman

Ours is an age of growing doubt about constitutional theory and of outright hostility to any theory that defends judicial review. Why should a tiny number of unelected judges be able to validate or invalidate laws on such politically controversial issues as abortion, religion, gender, and sex - or even determine how the president is elected? In this provocative book, a leading constitutional theorist offers an entirely original defence of judicial review. Louis Michael Seidman argues that judicial review is defensible if we set aside common but erroneous assumptions, namely that constitutional law should be independent from our political commitments and that the role of constitutional law is to settle political disagreement. Seidman develops a theory of "unsettlement". A constitution that unsettles, that destabilises outcomes produced by the political process, creates no permanent losers nursing deep-seated grievances, he says. An "unsettling" constitution helps to build a community founded on consent by enticing losers into a continuing conversation. The author applies this theory to an array of well-known cases heard by the Supreme Court over the past several decades, including the Autumn 2000 election decision.

Louis Michael Seidman is professor of law at Georgetown University Law Center. He is coauthor of a widely respected constitutional law casebook and author of numerous articles on criminal justice and constitutional law.

"One of our most thoughtful constitutional commentators has provided a fresh new look at how the Constitution as a text, and judicial review as a practice, function to mediate and provoke dispute in our republic. Anyone who is dissatisfied with the conventional wisdom that the Supreme Court's function is to pronounce the final word in constitutional controversies should read this book." Laurence H. Tribe