Author: Steven Kautz,Arthur Melzer,Jerry Weinberger,Richard Zinman

Publisher: University of Pennsylvania Press

ISBN: 0812221907

Category: Law

Page: 328

View: 6658

From Brown v. Board of Education to Roe v. Wade to Bush v. Gore, the Supreme Court has, over the past fifty years, assumed an increasingly controversial place in American national political life. As the recurring struggles over nominations to the Court illustrate, few questions today divide our political community more profoundly than those concerning the Court's proper role as protector of liberties and guardian of the Constitution. If the nation is today in the midst of a "culture war," the contest over the Supreme Court is certainly one of its principal battlefields. In this volume, distinguished constitutional scholars aim to move debate beyond the sound bites that divide the opposing parties to more fundamental discussions about the nature of constitutionalism. Toward this end, the volume includes chapters on the philosophical and historical origins of the idea of constitutionalism; on theories of constitutionalism in American history in particular; on the practices of constitutionalism around the globe; and on the parallel emergence of--and the persistent tensions between--constitutionalism and democracy throughout the modern world. In democracies, the primary point of having a constitution is to place some matters beyond politics and partisan contest. And yet it seems equally clear that constitutionalism of this kind results in a struggle over the meaning or proper interpretation of the constitution, a struggle that is itself deeply political. Although the volume represents a variety of viewpoints and approaches, this struggle, which is the central paradox of constitutionalism, is the ultimate theme of all the essays.
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Author: Steven Kautz,Arthur Melzer,Jerry Weinberger,M. Richard Zinman

Publisher: University of Pennsylvania Press

ISBN: 9780812206074

Category: Law

Page: 328

View: 5938

From Brown v. Board of Education to Roe v. Wade to Bush v. Gore, the Supreme Court has, over the past fifty years, assumed an increasingly controversial place in American national political life. As the recurring struggles over nominations to the Court illustrate, few questions today divide our political community more profoundly than those concerning the Court's proper role as protector of liberties and guardian of the Constitution. If the nation is today in the midst of a "culture war," the contest over the Supreme Court is certainly one of its principal battlefields. In this volume, distinguished constitutional scholars aim to move debate beyond the sound bites that divide the opposing parties to more fundamental discussions about the nature of constitutionalism. Toward this end, the volume includes chapters on the philosophical and historical origins of the idea of constitutionalism; on theories of constitutionalism in American history in particular; on the practices of constitutionalism around the globe; and on the parallel emergence of—and the persistent tensions between—constitutionalism and democracy throughout the modern world. In democracies, the primary point of having a constitution is to place some matters beyond politics and partisan contest. And yet it seems equally clear that constitutionalism of this kind results in a struggle over the meaning or proper interpretation of the constitution, a struggle that is itself deeply political. Although the volume represents a variety of viewpoints and approaches, this struggle, which is the central paradox of constitutionalism, is the ultimate theme of all the essays.
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Author: Steven J. Kautz,Steven Kautz,Arthur Melzer,Jerry Weinberger,M. Richard Zinman

Publisher: N.A

ISBN: 9780812241662

Category: Political Science

Page: 320

View: 9468

In this volume, distinguished constitutional scholars aim to move debate over the Supreme Court beyond the soundbites that divide us to fundamental questions about the nature of constitutionalism.
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Author: Alexander M. Bickel

Publisher: Yale University Press

ISBN: 9780300022391

Category: History

Page: 210

View: 581

A history of the Warren Court and its impact on the political and legal system. Best known for its treatment of the Brown v. Board of Education decision, which Bickel believed was headed for obsolescence and abandonment. Based on the Oliver Wendell Holmes Lectures at Harvard Law School in 1969.
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The Origins and Consequences of the New Constitutionalism

Author: Ran Hirschl

Publisher: Harvard University Press

ISBN: 9780674038677

Category: Law

Page: 296

View: 3486

In countries and supranational entities around the globe, constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries. The constitutionalization of rights and the establishment of judicial review are widely believed to have benevolent and progressive origins, and significant redistributive, power-diffusing consequences. Ran Hirschl challenges this conventional wisdom. Drawing upon a comprehensive comparative inquiry into the political origins and legal consequences of the recent constitutional revolutions in Canada, Israel, New Zealand, and South Africa, Hirschl shows that the trend toward constitutionalization is hardly driven by politicians' genuine commitment to democracy, social justice, or universal rights. Rather, it is best understood as the product of a strategic interplay among hegemonic yet threatened political elites, influential economic stakeholders, and judicial leaders. This self-interested coalition of legal innovators determines the timing, extent, and nature of constitutional reforms. Hirschl demonstrates that whereas judicial empowerment through constitutionalization has a limited impact on advancing progressive notions of distributive justice, it has a transformative effect on political discourse. The global trend toward juristocracy, Hirschl argues, is part of a broader process whereby political and economic elites, while they profess support for democracy and sustained development, attempt to insulate policymaking from the vicissitudes of democratic politics.
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Popular Constitutionalism and Judicial Review

Author: Larry D. Kramer

Publisher: Oxford University Press

ISBN: 9780198037828

Category: History

Page: 376

View: 4135

In this groundbreaking interpretation of America's founding and of its entire system of judicial review, Larry Kramer reveals that the colonists fought for and created a very different system--and held a very different understanding of citizenship--than Americans believe to be the norm today. "Popular sovereignty" was not just some historical abstraction, and the notion of "the people" was more than a flip rhetorical device invoked on the campaign trail. Questions of constitutional meaning provoked vigorous public debate and the actions of government officials were greeted with celebratory feasts and bonfires, or riotous resistance. Americans treated the Constitution as part of the lived reality of their daily existence. Their self-sovereignty in law as much as politics was active not abstract.
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The Supreme Court Vs. the Sovereignty of the People

Author: Matthew J. Franck

Publisher: N.A

ISBN: N.A

Category: Law

Page: 279

View: 4194

Franck challenges three propositions central to current debates about the supreme Court's role in American life: that the Court has the final word in interpreting the Constitution above competing views from other government branches; that it may legitimately initiate actions to correct political or social dysfunctions left uncorrected by those branches; and that constitutional decisions may be grounded in natural law or a "higher law" located beyond the text of the Constitution. Franck claims these erroneous propositions have allowed the Court's power to grow well beyond its constitutional mandate. He persuasively argues that a more accurate and responsible view of judicial power can be revived by reexamining the Framers' thought, the writings of liberal philosopher (especially Hobbes, Locke, and Blockstone), and the early opinions of the Supreme Court.
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How Justices and Litigants Set the Supreme Court Agenda

Author: Vanessa A. Baird

Publisher: University of Virginia Press

ISBN: 0813930448

Category: Political Science

Page: 240

View: 2126

The U.S. Supreme Court is the quintessential example of a court that expanded its agenda into policy areas that were once reserved for legislatures. Yet scholars know very little about what causes attention to various policy areas to ebb and flow on the Supreme Court’s agenda. Vanessa A. Baird’s Answering the Call of the Court: How Justices and Litigants Set the Supreme Court Agenda represents the first scholarly attempt to connect justices’ priorities, litigants’ strategies, and aggregate policy outputs of the U.S. Supreme Court. Most previous studies on the Supreme Court’s agenda examine case selection, but Baird demonstrates that the agenda-setting process begins long before justices choose which cases they will hear. When justices signal their interest in a particular policy area, litigants respond by sponsoring well-crafted cases in those policy areas. Approximately four to five years later, the Supreme Court’s agenda in those areas expands, with cases that are comparatively more politically important and divisive than other cases the Court hears. From issues of discrimination and free expression to welfare policy, from immigration to economic regulation, strategic supporters of litigation pay attention to the goals of Supreme Court justices and bring cases they can use to achieve those goals. Since policy making in courts is iterative, multiple well-crafted cases are needed for courts to make comprehensive policy. Baird argues that judicial policy-making power depends on the actions of policy entrepreneurs or other litigants who systematically respond to the priorities and preferences of Supreme Court justices.
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The First Amendment Freedoms in Political Philosophy and American Constitutionalism

Author: Murray Dry

Publisher: Lexington Books

ISBN: 9780739109311

Category: Law

Page: 309

View: 1125

Dry examines the U.S. Supreme Court's treatment of the First Amendment freedoms of religion and speech against the founding of the American Constitution and its philosophical underpinnings.
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Courts, Constitutions, and the Worth of the Human Person

Author: Erin Daly

Publisher: University of Pennsylvania Press

ISBN: 0812207270

Category: Political Science

Page: 272

View: 8755

The right to dignity is now recognized in most of the world's constitutions, and hardly a new constitution is adopted without it. Over the last sixty years, courts in Latin America, Europe, Asia, Africa, the Middle East, and North America have developed a robust jurisprudence of dignity on subjects as diverse as health care, imprisonment, privacy, education, culture, the environment, sexuality, and death. As the range and growing number of cases about dignity attest, it is invoked and recognized by courts far more frequently than other constitutional guarantees. Dignity Rights is the first book to explore the constitutional law of dignity around the world. Erin Daly shows how dignity has come not only to define specific interests like the right to humane treatment or to earn a living wage, but also to protect the basic rights of a person to control his or her own life and to live in society with others. Daly argues that, through the right to dignity, courts are redefining what it means to be human in the modern world. As described by the courts, the scope of dignity rights marks the outer boundaries of state power, limiting state authority to meet the demands of human dignity. As a result, these cases force us to reexamine the relationship between the individual and the state and, in turn, contribute to a new and richer understanding of the role of the citizen in modern democracies.
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Author: Gary L. McDowell

Publisher: Cambridge University Press

ISBN: 0521140919

Category: Law

Page: 409

View: 8697

"In this fine book, Gary McDowell shows that the Constitution is our fundamental law---not our master, but our guide and mentor. Only at our peril do we try to make it our servant."---Harvey Mansfield, Harvard University "Erudite and lucid: McDowell's book is a must-read for those who wish to understand the philosophical and linguistic roots of the originalist tradition of constitutional interpretation."-R. Kent Newmyer, University of Connecticut School of Law "This book adds a major dimension of depth to the case for guiding judicial interpretation of the Constitution by the original intent of the framers. McDowell articulates a deeply thought-provoking meditation, informed by a fertile understanding of key foundations for originalism articulated by major figures in political philosophy, in the common law, and among the Founders themselves who shaped the theorizing that informs our constitutional order."---Thomas Pangle, University of Texas at Austin "For several decades, Gary McDowell has been one of our most brilliant and learned students of law and political philosophy. This book is his summa, a profound defense of originalism as a moral Constitutional philosophy, a brilliant discourse on the framers and their philosophical forbears and successors, and a powerful handbook of strategy in what McDowell calls `the contemporary war for the Constitution.'This work is essential reading for anyone who cares about the Supreme Court and the Constitution, but it is more. It is, simply stated, one of this generation's most important contributions toward preserving the rule of law itself."---Stephen Presser, Northwestern University School of Law "In this timely book, the case against the so-called `living' constitution is so powerfully argued and so clearly presented that it cannot be ignored."---Gordon S. Wood, Brown University
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Author: Paul D. Moreno,Jonathan O'Neill

Publisher: Fordham Univ Press

ISBN: 0823251942

Category: History

Page: 274

View: 683

Nine essays which examine constitutional issues at different points in American political history to explain how the constitutional issues resulting in the Civil War were central to politics for a long time before and after the actual conflict. Treats the period from the 1780s through the 1920s.
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A New Defense of Constitutionalism and Judicial Review

Author: Louis Michael Seidman

Publisher: Berghahn Books

ISBN: 9780300085310

Category: Law

Page: 260

View: 8560

Ours is an age of growing doubt about constitutional theory and of outright hostility to any theory that defends judicial review. Why should a tiny number of unelected judges be able to validate or invalidate laws on such politically controversial issues as abortion, religion, gender, and sex - or even determine how the president is elected? In this provocative book, a leading constitutional theorist offers an entirely original defence of judicial review. Louis Michael Seidman argues that judicial review is defensible if we set aside common but erroneous assumptions, namely that constitutional law should be independent from our political commitments and that the role of constitutional law is to settle political disagreement. Seidman develops a theory of unsettlement. A constitution that unsettles, that destabilises outcomes produced by the political process, creates no permanent losers nursing deep-seated grievances, he says. An unsettling constitution helps to build a community founded on consent by enticing losers into a continuing conversation. The author applies this theory to an array of well-known cases heard by the Supreme Court over the past several decades, including t
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Author: Mark A. Graber

Publisher: Cambridge University Press

ISBN: 9781139457071

Category: History

Page: N.A

View: 7559

Dred Scott and the Problem of Constitutional Evil , first published in 2006, concerns what is entailed by pledging allegiance to a constitutional text and tradition saturated with concessions to evil. The Constitution of the United States was originally understood as an effort to mediate controversies between persons who disputed fundamental values, and did not offer a vision of the good society. In order to form a 'more perfect union' with slaveholders, late-eighteenth-century citizens fashioned a constitution that plainly compelled some injustices and was silent or ambiguous on other questions of fundamental right. This constitutional relationship could survive only as long as a bisectional consensus was required to resolve all constitutional questions not settled in 1787. Dred Scott challenges persons committed to human freedom to determine whether antislavery northerners should have provided more accommodations for slavery than were constitutionally strictly necessary or risked the enormous destruction of life and property that preceded Lincoln's new birth of freedom.
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Coke, Hobbes, and the origins of American constitutionalism

Author: James Reist Stoner

Publisher: Univ Pr of Kansas

ISBN: N.A

Category: Law

Page: 287

View: 8387

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Author: John O. McGinnis,Michael B. Rappaport

Publisher: Harvard University Press

ISBN: 067472626X

Category: Law

Page: 308

View: 6410

Originalism holds that the U.S. Constitution should be interpreted according to its meaning at the time it was enacted. In their innovative defense of originalism, John McGinnis and Michael Rappaport maintain that the text of the Constitution should be adhered to by the Supreme Court because it was enacted by supermajorities--both its original enactment under Article VII and subsequent Amendments under Article V. A text approved by supermajorities has special value in a democracy because it has unusually wide support and thus tends to maximize the welfare of the greatest number. The authors recognize and respond to many possible objections. Does originalism perpetuate the dead hand of the past? How can originalism be justified, given the exclusion of African Americans and women from the Constitution and many of its subsequent Amendments? What is originalism's place in interpretation, after two hundred years of non-originalist precedent? A fascinating counterfactual they pose is this: had the Supreme Court not interpreted the Constitution so freely, perhaps the nation would have resorted to the Article V amendment process more often and with greater effect. Their book will be an important contribution to the literature on originalism, now the most prominent theory of constitutional interpretation.
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The Twilight of Constitutionalism and the Triumph of Progressivism

Author: Paul D. Moreno

Publisher: Cambridge University Press

ISBN: 1107032954

Category: History

Page: 349

View: 9957

The story of the breakdown of limited government in America and the rise of the federal state.
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Author: Bradford P. Wilson,Ken Masugi

Publisher: Rowman & Littlefield

ISBN: 9780847686599

Category: Law

Page: 298

View: 9440

In this important book, fourteen of America's leading constitutional scholars assess the Supreme Court's performance expounding the animating principles of American constitutionalism. Essays devoted to fresh examination of the Supreme Court's jurisprudence with respect to the Necessary and Proper Clause, the Commerce Clause, federalism, the common law, international law and national sovereignty, separation of powers, fundamental rights, term limits, and constitutional criminal procedure. Other essays evaluate the work of the Court as "republican school master", analyzing how the Court has articulated and affected the American people's capacity for self-government, the principle of the rule of law, the historic burden of racial injustice, respect for limited constitutional government, and the civilizational distinction between liberty and license. The Supreme Court and American Constitutionalism will be of great value to students and scholars of American constitutional studies, constitutional law, and American government.
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Obergefell v. Hodges and U.S. v. Windsor in Context

Author: Patrick N. Cain,David Ramsey

Publisher: Rowman & Littlefield

ISBN: 149852818X

Category: Law

Page: 240

View: 6358

This volume examines the Supreme Court’s rulings in U.S. v. Windsor and Obergefell v. Hodges in light of its earlier rulings while also incorporating several prominent accounts of marriage and the family from the history of political philosophy.
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Author: John Agresto

Publisher: Cornell University Press

ISBN: 9780801492778

Category: Political Science

Page: 182

View: 2689

In The Supreme Court and Constitutional Democracy John Agresto traces the development of American judicial power, paying close attention to what he views as the very real threat of judicial supremacy.Agresto examines the role of the judiciary in a democratic society and discusses the proper place of congressional power in constitutional issues. Agresto argues that while the separation of congressional and judicial functions is a fundamental tenet of American government, the present system is not effective in maintaining an appropriate balance of power. He shows that continued judicial expansion, especially into the realm of public policy, might have severe consequences for America's national life and direction, and offers practical recommendations for safeguarding against an increasingly powerful Supreme Court.John Agresto's controversial argument, set in the context of a historical and theoretical inquiry, will be of great interest to scholars and students in political science and law, especially American constitutional law and political theory.
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