I suggest that there are two main views that can be found in Professor Schwarzschild's paper. The first is a strong suspicion of any type of centralized power, especially judicial power, as potentially stifling the plurality of values in society and imposing a monolithic view from above. This theme makes federalism and judicial activism especially central issues in the paper, and I will concentrate on both of them in my comment. The second view regarding the application of value pluralism is more subtle. It is a Burkean defense of traditional institutions, arguing that they represent a way of life in danger of extinction in the face of generic and prevalent rationalism. Value pluralism should induce us to protect such traditions from extinction. This theme is manifested in the discussion of gay marriage and represents a conservative and traditionalist strand of value pluralism. The two themes can be related according to a view promoting state autonomy as a safe haven against an attempt to subject the variety of tradition-based experiences to the homogeneous effect rationalism. In what follows, I will concentrate on these two themes and point out several challenges to Professor Schwarzschild's application of them, starting with a discussion of federalism and ending with a discussion of judicial activism, which I will also expand into my own argument on three different ways in which value pluralism can be applied to judicial review adjudication.
The Plural Implications of Value Pluralism: A Comment on Maimon Schwarzschild's On This Side of the Law and On That Side of the Law,
San Diego L. Rev.
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