As I write these words, bevies of law clerks assigned to cases involving the Bill of Rights are dutifully editing their bench memos for publication in the national reporter system. Once printed, these bench memos will be solemnly treated by lawyers, scholars, other law clerks, and the occasional judge who runs across them as legally significant, or even binding, interpretations of the Constitution. Two features of this burgeoning mass of otherwise unpublishable law review comments bear mention. First, most of them are tedious, tendentious, pretentious, and badly reasoned when reasoned at all, just as one would expect from authors who are one or two years out of law school.' Second, many, if not most, of these law clerk opinions bear no visible relationship to the actual words of the Bill of Rights. In fact, it is possible to find opinions purportedly applying the Bill of Rights that never deem it necessary to quote the amendments supposedly at issue.'
An Interpretivist Agenda
Harvard Journal of Law & Public Policy
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2542