The Perils of Minimalism, 9 Theoretical Inquiries in Law 643 (2008)
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 Guantdnamo, 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.
Date of Authorship for this Version
Fiss, Owen M., "The Perils of Minimalism" (2008). Faculty Scholarship Series. 1309.