Recent Publication 133 Harv. L. Rev. 1814

Recent Publications — March 2020


Originalism’s Promise: A Natural Law Account of the American Constitution. By Lee J. Strang. New York, N.Y.: Cambridge University Press. 2019. Pp. xiii, 314. $110.00. Originalism is perhaps the best-known theory of judicial interpretation today, but does it reflect our constitutional practice — or, perhaps more importantly, yield desirable results? In Originalism’s Promise, Professor Lee Strang answers both questions with a resounding yes. Strang begins by examining the history of originalism and describing his own approach — a “constitutional communication model” that reconciles an original meaning emphasis with other strains of originalism (p. 44). Such originalism, he argues, is consistent not only with the Constitution itself but also with Supreme Court practice. Further, it is also “sufficiently flexible in the face of changed societal conditions” to overcome criticisms of impracticality (p. 209). The final chapter provides a normative justification for originalism through a natural law framework: originalism is the best method to “overcome coordination problems, secure the common good,” and “promote[] human flourishing” (p. 278). Throughout the book, Strang thoughtfully considers the limits and weaknesses of originalism, concluding that originalism — correctly applied — requires respect for precedent (including nonoriginalist precedent) and the development of “judicial virtues” in its practitioners (p. 144). Ultimately, Strang provides a compelling argument that originalism can fulfill its promise to enable the Constitution’s establishment of a just and good society.

Private Racism. By Sonu Bedi. New York, N.Y.: Cambridge University Press. 2020. Pp. ix, 202. $84.99. While much scholarly and judicial energy has been focused on addressing the harms of racism in the public sphere, Professor Sonu Bedi advocates for a heightened focus on the effects of racism in the private sphere. Private Racism attempts to find common ground between John Rawl’s (and the Republican Party’s) conception of an ideal society in which race should not matter and recent scholars’ (and the Democratic Party’s) arguments that, empirically, race does matter. Bedi applies lessons from political theory and closely analyzes seminal cases in civil rights law. Employing a methodologically diverse approach, he develops a robust description of private racism and establishes its existence before exploring both the moral and legal arguments as to why it is prohibited. Private Racism examines the current climate of racial discrimination in a range of private contexts, including reproductive markets, the film industry, and cyberspace, providing a multifaceted survey of race relations in the modern era. In so doing, it sets the groundwork to broadly expand conceptions of justice in the private sphere.