When judges openly acknowledged the constant fluidity of society, they self-consciously attuned legal rules to the realistic social consequences most likely thought to follow. Judges lost hold of the purposes the legal principles had first been designed to serve. Conceptions are fixed. Everything is reduced to simple deduction from them.
Principles cease to have importance.
The law becomes a body of rules. Thus was born formalist, or mechanical, jurisprudence. To Tracey Meares and Dan Kahan the admirable constitutional progressivism of the Warren Court is in danger of becoming just such a formalized, abstracted, mechanical body of rules. The constitutionalism of the 1960s was built on at least three central premises concerning the structure of solutions to problems of racial exclusion and oppression. First, that strong assertions of national power were required.