In Their Own Image: The Reframing of the Due Process Clause by the United States Supreme Court

Georgia Law Review, Vol. 13, No. 2 (Winter 1979), pp. 479-503


A distinguished constitutional scholar recently pointed out that "many of the important decisions of the Supreme Court of the United States are not based on law in the popular sense of that term." It is true, he noted, that "the court endeavors to identify Constitutional clauses upon which to hang its pronouncements." "[S]ome key words and phrases in the Constitution," however, "are so highly indeterminate that they cannot really qualify as law in any usual sense." Rather, he said, "they are semantic blanks--verbal vacuums that may be filled readily with any one of many possible meanings." Thus, it is not surprising that "different judges over a period of time, as well as at the same time, choose to fill them with their own meanings"--choose to fashion a Constitution in their own image.