Every Court is the product of its time, reflecting predilections of fallible men in black robes. While wearing the magical habiliments of the law, Supreme Court justices take sides on controversial issues. From John Marshall to Warren Burger, the Court has been the guardian of some particular interest and the promoter of preferred values. Thus judicial activism, of whatever orientation, involves a paradox at the heart of constitutional orthodoxy—the Supreme Court considered as the mouthpiece of self-interpreting, self-enforcing law.

The politics of the Union de la gauche dominated the 1977–78 French legislative campaign and the postelection analyses. Undeniably, one of the most intriguing subjects during this period was the strategy of the French Communist party (PCF), its evolution over the previous decade and its apparently conflicting objectives. It wasn't at all obvious, for example, that the Communists wanted to win the elections. Did the PCF deliberately reject the possibility of governing under conditions which it presumed it could not control because of the superior electoral strength of the Socialist party (PS)? This interpretation was widespread in the French and American press after the elections and, of course, was favored by the Socialists. Or was the PCF as dedicated as ever to a democratic transition to socialism through a communist-socialist coalition? Georges Marchais, the party's secretary-general, insisted this was the case before the election returns were in.

Just when the equation of republican government with liberal representative democracy had finally taken hold in the academic community, a new group of scholars began to emphasize the differences between them. Drawing upon the writings of earlier republican theorists, they argued that republican government traditionally depended upon political participation and virtue to preserve freedom. In contrast, liberal democracy relied upon representation and self-interest, both of which undermined the civic spirit of the community.

During the 1950's and 1960's, Utopian thought, like ideology generally, was deemed to be at an end. Typically, Judith Shklar pronounced that “the urge to construct grand designs for the political future of mankind is gone,” basing her judgment on the ground that “the last vestiges of Utopian faith required for such an enterprise have vanished.” Even more recently, and correspondingly less perspicaciously, Paul Seabury expressed the view that “a Utopian concern for ‘world order’ as a planned qualitative transformation designed to meet new needs seems to have been washed out. … Prescriptive futurism now seems passé. In the event, such obituaries have turned out to be premature: thought about world order reform has experienced a resurgence during the 1970's, to such an extent that we might be tempted to equate the intellectual mood of the present time with the Utopian impulse of the post-1918 decade.

A close examination of early and modern American constitutional interpretation reveals that there has been an essential change in the manner in which the Constitution is interpreted. When that comparison takes the form of a comparison between very early Supreme Court decisions and very recent ones the difference is relatively clear—at least that there is a difference. To some extent, what some of the differences are is observable. For instance, the overt balancing of interests (those of state and individual) in modern civil liberties cases is quite different from the character of earlier Supreme Court decisions.