In this essay, Professor Pierce describes the many ways in which the conservative majority of the Supreme Court has attempted to use its unique approach to interpretation of the Constitution to restructure the government and to reallocate power among the branches of government. He then describes the problems that the Court has encountered in its efforts to choose remedies for the constitutional flaws that it detects.
Increasingly, the Court must choose between remedies that are ineffective and remedies that make it impossible for the government to function. Pierce predicts that the problems that the Court has experienced to date will increase and will become even more intractable if it continues to apply its present approach to interpretation of the Constitution.
Pierce argues that the choice of remedy problems will diminish significantly if the Court adopts an approach to interpretation of the Constitution that is less rigid. The Court should accord Congress the deference it deserves in recognition of the challenges that it faces in its efforts to create a government that is true to our constitutional values and that is capable of performing the critical functions of government.
Richard J. Pierce Jr., The Remedies for Constitutional Flaws Have Major Flaws, 18 Duke Journal of Constitutional Law & Public Policy 105-133 (2023)
Available at: https://scholarship.law.duke.edu/djclpp/vol18/iss1/3