Reviewed by a book critic not a lawyer. Waiting for commentary from Jack Balkin, et al.

Make it idiot-proof VI
Interesting to watch the slow move away from the idealization of elite culture and back towards a defense of democracy. The arguments over judicial review track with a general move -a pendulum swing- away from the idea of a political esthetic or intellectual Avant-Garde.

[The discussion of the 60's in elite -white bourgeois- culture always centers around the dreams and traumas of that culture. The political activism of the black lower middle class from the mid 50's to the mid 60's is always secondary.]

What happens when the vanguard becomes self-perpetuating and self-serving?
A social scientist may do a study that finds that the people of a given society are not willing to accept proposal "A," but assuming the study is valid all it shows is the society in a contextless present. Without an understanding of processes (of relations over time) the study has [needs to be seen as having] limited use. The opinions of a people are not absolutes, except in as much as to say that Population 1 held opinion X about proposal A at time T.
To say it is a fact that people at any given time are opposed to unions, national health care, higher taxes, gay rights, or anything else is not a reason to argue against them.

Two societies may have the same restrictive form of government, or one may be less restrictive than the other. What matters more than those facts is the societies' direction. There is no science of human attitudes absent the science of their change over time.

The realist acceptance of greed became the optimist's celebration of it. Why? Because the dream of predicting human frailty was used as proof of the opposite.
The pessimist's understanding of our animal tendency to act on reflex became the optimist's defense of reflex as reason.

The driving force behind this was the American ideology of optimism.