Judicial Competence and Fundamental Rights

In the April 1979 issue of the Michigan Law Review, Professor Ira Lupu added his valuable contribution to the continuing debate on the problem of defining the nature of fundamental rights under the Constitution. In many respects his article is a wholly admirable piece of scholarship, both well-researched and carefully reasoned. However, on one issue – the question of judicial competence to identify the values he defines as fundamental – Professor Lupu’s discussion is seriously deficient. This letter will examine the problem of judicial competence and conclude that it is fatal to Professor Lupu’s conception of the appropriate role of the Court under the due process and equal protection clauses.