Abstract

The essay aims at discussing a judicial method of constitutional interpretation which attracts in the US a large consensus and which is referred to as judicial minimalism. Cass Sunstein defines judicial minimalism as the attitude of not saying more than necessary to decide a case, leaving whenever possible things undecided. The minimalist judge decides one case at a time, and resorts to narrow and shallow arguments, avoiding large theoretical assumptions and modifying previous practices only incrementally. The purpose of the essay is to signal that while judicial minimalism rests on the wish to narrow the scope of the law in favor of a spontaneous progress of the ideas in the society, it has acquired a legalistic tone which contradicts its own assumptions.