Democratic Theories One

We now begin to explore alternatives to originalism as a theory of constitutional interpretation. This episode and the next deal with approaches that say that courts can promote democracy through constitutional review. This time we take up an old and mostly abandoned approach advocated by James Bardley Thayer in 1892, that courts should invalidate statutes only if they are obviously unreasonable. Thayer said that was the right approach because legislators should and did take their responsibility to adhere to the Constitution seriously. Most of discussion challenges that assumption.