Judicial Restraint in a System of Judicial Review

I’ll have more to say about living constitutionalism in a later posting this week, but in the meantime, I wanted to offer a few remarks about Eric Posner’s call for judicial restraint last week. Eric makes three suggestions in his critique. Eric’s first point is that judges should engage in more judicial restraint. Eric’s second point is that this is not only his view: There is a growing consensus of other constitutional theorists forming in favor of judicial restraint. Eric’s third point is that constitutional theorists should recognize that judges don’t pay attention to constitutional theory and don’t care what constitutional theorists think.

Am I the only one who sees a potential problem here?

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