Holmes's view that policy, not logic, shapes the law is particularly apt for constitutional law. There are some who deplore that judges base constitutional decisions on their personal views of good policy,' but hardly anyone denies that judges are in fact guided by "sense" as well as "syllogism." Judicial policymaking remains controversial in many areas of constitutional law, but in some it has long since been widely accepted that judgment as well as reason should influence judicial decisions. Historically cases involving the separation of powers have been in this category.
Date of Authorship for this Version
Elliott, E. Donald, "INS v. Chadha: The Administrative Constitution, the Constitution and the Legislative Veto" (1984). Faculty Scholarship Series. 5108.