Assume it is true, as Justice Robert H. Jackson observed in a speech on October 1, 1953
that “long-sustained public opinion does influence the process of constitutional interpretation.” Assume, as well, that Chief Justice Rehnquist was correct in his observation that the “tide of public opinion” had exerted “considerable influence” on the Court’s ruling in the Steel Seizure Case. Do you think the Court should take account of public opinion in its deliberations? If so, how should the Court discern the state of public opinion? What are the implications of this interpretive approach for constitutional government?
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