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The Perils of Minimalism

Published/Copyright: June 23, 2008
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Theoretical Inquiries in Law
From the journal Theoretical Inquiries in Law Volume 9 Issue 2

Minimalism is a theory, of increasing popularity in the United States in recent decades, that requires the judiciary to base its decisions on the most limited grounds available. One of its central tenets dictates that the judiciary, if at all possible, should base its rulings on statutory rather than constitutional grounds. Set in the context of the "War on Terror" and a number of U.S. Supreme Court decisions regarding the rights of prisoners held in Guanta´namo, this Article seeks to identify the pitfalls of such an approach to judicial decisionmaking. Specifically, it shows how minimalism has led to legislative enactments that deprive the prisoners of basic rights and that, as a practical matter, compromise the capacity of the Supreme Court ever to adequately address the prisoners’ claims. Although minimalism has been defended on the ground that it furthers democratic values, such a view reduces democracy to majoritarianism as opposed to a broad-based deliberative process that gives content to the fundamental values of the nation. It also overlooks the important and constructive role of the judiciary in that process.

Published Online: 2008-6-23

©2011 Walter de Gruyter GmbH & Co. KG, Berlin/Boston

Articles in the same Issue

  1. Article
  2. Introduction
  3. The Pluralization of Regulation
  4. Corporate Social Responsibility: Towards a New Market-Embedded Morality?
  5. Beyond Relativism: Where Is Political Power in Legal Pluralism?
  6. State, Society and the Relations Between Them: Implications for the Study of Legal Pluralism
  7. Eugen Ehrlich, Living Law, and Plural Legalities
  8. Nomos Without Narrative
  9. Privatizing the Adjudication of Disputes
  10. The Depoliticization of Law
  11. Liberalism and Religion: Against Congruence
  12. Privatizing Diversity: A Cautionary Tale from Religious Arbitration in Family Law
  13. From "Honor" to "Dignity": How Should a Liberal State Treat Non-Liberal Cultural Groups?
  14. Annual Cegla Lecture on Legal Theory
  15. The Perils of Minimalism
https://doi.org/10.2202/1565-3404.1200

Articles in the same Issue

  1. Article
  2. Introduction
  3. The Pluralization of Regulation
  4. Corporate Social Responsibility: Towards a New Market-Embedded Morality?
  5. Beyond Relativism: Where Is Political Power in Legal Pluralism?
  6. State, Society and the Relations Between Them: Implications for the Study of Legal Pluralism
  7. Eugen Ehrlich, Living Law, and Plural Legalities
  8. Nomos Without Narrative
  9. Privatizing the Adjudication of Disputes
  10. The Depoliticization of Law
  11. Liberalism and Religion: Against Congruence
  12. Privatizing Diversity: A Cautionary Tale from Religious Arbitration in Family Law
  13. From "Honor" to "Dignity": How Should a Liberal State Treat Non-Liberal Cultural Groups?
  14. Annual Cegla Lecture on Legal Theory
  15. The Perils of Minimalism
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