George F. Will’s September 1 column in the Washington Post gave a starring role to Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations (2002), by Professor Dan Farber and Vanderbilt University Law School co-author Suzanna Sherry. Will’s column questioned “dogmatic majoritarians” who seek to limit the power of the judiciary and cited Farber’s and Sherry’s discussion of the importance of judicial review in curbing the occasional caprices of democratic majorities.
In Desperately Seeking Certainty, Farber and Sherry critique the positions of a half-dozen leading constitutional foundationalists, including U.S. Supreme Court Justice Antonin Scalia and Robert Bork, whose originalist views played a large part in the rejection of his 1987 nomination to the high court. Farber and Sherry argue that the foundationalists attempt the impossible by trying to impose grand theories that tend to ignore basic contradictions in constitutional law and interpretation. They write: “The search for a single, certain foundation for constitutional law is not only futile and detrimental to a healthy constitutional regime, but unnecessary. Like the elephant, constitutional law works in practice despite its contradictions in theory.”