Hastings Law Journal
Professor Novak's article' is a much-needed breath of fresh air, because of both its historical approach and its rejection of a paradigm of pure individualism. Professor Novak eloquently reminds us that constitutional theorists of all political stripes are today both more presentist and more individualist than their predecessors. His paper is a gentle suggestion that we might do well to moderate these modern tendencies. Professor Novak's thorough historical examination persuasively debunks the myth of the early nineteenth century as the constitutional parent of the twentieth. Indeed, his paper shows us that comparing the length of a line and the weight of a rock is perhaps a more apt description of comparisons between the constitutional jurisprudence of the two centuries than it is of attempts to balance private rights and public values. Successful as it is, however, Professor Novak's article is only the first step. Moreover, like many attempts to correct prevalent misconceptions, its strength is also its weakness: In his desire to reintroduce the missing concepts of historical knowledge and common or community interests, Professor Novak unintentionally goes too far and undervalues both individualism and presentism.
Public Values and Private Virtue, 45 Hastings Law Journal. 1099
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/346