The paper addresses the sources of legitimacy of a judge exercising the power to declare acts of government invalid on constitutional grounds, and their relationship to theories of interpretation of the constitutional texts. In perhaps no other country is the legitimacy of the constitutional judge a more important issue than in the United States. Constitutional judicial review of acts of the government has had, and continues to have, a profound effect on the extent and character of public action. The constitutional decisions of the courts govern, to a significant degree, some of the most intensely controversial questions of public policy. American courts actively police the role of government with respect to criminal conduct and punishment, racial discrimination and remedies for such discrimination, and the regulation of reproductive and sexual matters, among. many other subjects. It is, in fact, fair to say the judicial penetration of many of these topics has been so complete that the very agenda of public concerns is, in substantial measure, defined by the process of litigation and judicial decision.
Kay, Richard and Fisch, William B., "The Legitimacy of the Constitutional Judge and Theories of Interpretation in the United States" (1994). Faculty Articles and Papers. 509.