The Basic Questions
Author: Sotirios A. Barber,James E. Fleming
Publisher: OUP USA
Ronald Dworkin famously argued that fidelity in interpreting the Constitution as written calls for a fusion of constitutional law and moral philosophy. Barber and Fleming take up that call, arguing for a philosophic approach to constitutional interpretation. In doing so, they systematically critique the competing approaches - textualism, consensualism, originalism, structuralism, doctrinalism, minimalism, and pragmatism - that aim and claim to avoid a philosophic approach. Constitutional Interpretation: The Basic Questions illustrates that these approaches cannot avoid philosophic reflection and choice in interpreting the Constitution. Barber and Fleming contend that fidelity in constitutional interpretation requires a fusion of philosophic and other approaches, properly understood. Within such a fusion, interpreters would begin to think of text, consensus, intentions, structures, and doctrines not as alternatives to, but as sites of philosophic reflection about the best understanding of our constitutional commitments. Constitutional Interpretation: The Basic Questions examines the fundamental inquiries that arise in interpreting constitutional law. In doing so, the authors survey the controversial and intriguing questions that have stirred constitutional debate in the United States for over two centuries, such as: how and for what ends should governmental institutions and powers be arranged; what does the Constitution mean under general circumstances and how should it be interpreted during concrete controversies; and finally how do we decide what our constitution means and who ultimately decides its meaning.
Author: Walter F. Murphy,James E. Fleming,Sotirios A. Barber
Publisher: Foundation Pr
This undergaduate text uses original essays, cases and materials to study the very enterprise by which a constitution is interpreted and a constitutional government created. It explores the American polity as both a constitutional and democratic entity. This volume is organized around a set of basic interrogatives: What is the constitution that is to be interpreted? Who are its authoritative interpreters? How do they go about their interpretive tasks?
Author: Andrei Marmor
Publisher: Bloomsbury Publishing
This is a revised and extensively rewritten edition of one of the most influential monographs on legal philosophy published in recent years. Writing in the introduction to the first edition the author characterized Anglophone philosophers as being ..."divided, and often waver[ing] between two main philosophical objectives: the moral evaluation of law and legal institutions, and an account of its actual nature." Questions of methodology have therefore tended to be sidelined, but were bound to surface sooner or later, as they have in the later work of Ronald Dworkin. The main purpose of this book is to provide a critical assessment of Dworkin's methodological turn, away from analytical jurisprudence towards a theory of interpretation, and the issues it gives rise to. The author argues that the importance of Dworkin's interpretative turn is not that it provides a substitute for 'semantic theories of law' (a dubious concept), but that it provides a new conception of jurisprudence, aiming to present itself as a comprehensive rival to the conventionalism manifest in legal positivism. Furthermore, once the interpretative turn is regarded as an overall challenge to conventionalism, it is easier to see why it does not confine itself to a critique of method. Law as interpretation calls into question the main tenets of its positivist rival, in substance as well as method. The book re-examines conventionalism in the light of this interpretative challenge.
Author: Robert P. George
Publisher: Princeton University Press
Slavery, segregation, abortion, workers' rights, the power of the courts. These issues have been at the heart of the greatest constitutional controversies in American history. And in this concise and thought-provoking volume, some of today's most distinguished legal scholars and commentators explain for a general audience how five landmark Supreme Court cases centered on those controversies shaped the country's destiny and continue to affect us even now. The book is a profound exploration of the Supreme Court's importance to America's social and political life. It is also, as many of the contributors show, an intriguing reflection of what some have seen as an important trend in legal scholarship away from an uncritical belief in the essentially benign nature of judicial power. Robert George opens with an illuminating survey of the themes that unite and divide the five cases. Other contributors then examine each case in detail through a lively commentary-and-response format. Mark Tushnet and Jeremy Waldron exchange views on Marbury v. Madison, the pivotal 1803 case that established the power of the courts to invalidate legislation. Cass Sunstein and James McPherson discuss Dred Scott v. Sandford (1857), the notorious case that confirmed the rights of slaveowners, declared that black people could not be American citizens, and is often seen as a cause of the Civil War. Hadley Arkes and Donald Drakeman explore the legacy of Lochner v. New York (1905), a case that ushered in decades of judicial hostility to social welfare laws. Earl Maltz and Walter Murphy assess Brown v. Topeka Board of Education (1954), the famous case that ended racial segregation in public schools. Finally, Jean Bethke Elshtain and George Will tackle Roe v. Wade (1973), still a flashpoint a quarter of a century later in the debate over abortion. While some of the contributors show sympathy for strong judicial interventions on social issues, many across the ideological spectrum are sharply critical of judicial activism. A compelling introduction to the greatest cases in U.S. constitutional law, this is also an enlightening glimpse of the state of the art in American legal scholarship.
Essays, Cases, and Comparative Notes
Author: Donald P. Kommers,John E. Finn,Gary J. Jacobsohn
Publisher: Rowman & Littlefield
Category: Political Science
A course on constitutional law and civil liberties can be and is nothing less than an extended inquiry into the meaning of America. American Constitutional Law: Volume 1 Governmental Powers and Democracy, newly revised by Donald P. Kommers, John E. Finn, and Gary J. Jacobsohn, is a casebook made for such an inquiry. True to the liberal arts tradition from which it emerges, it goes beyond the facts and rulings of the great cases in American constitutional law to engage important issues of political theory and the nature of our constitutional democracy. Although the focus is on American constitutional law, Kommers, Finn, and Jacobsohn break new ground by incorporating comparative materials that enrich the study of the American Constitution by challenging the reader to assess American constitutional values in light of other traditions and understandings of constitutional governance. In an era of constitutional globalization, this new edition of a distinguished text is essential to an appreciation of tradition and diversity.Volume 1 focuses on governmental structures and relationships and includes a new chapter on elections and political representation.
A Judge's View
Author: Stephen G. Breyer
A Supreme Court justice outlines an accessible profile of the legislative branch's duties that explains its responsibility to safeguard the public while ensuring the cooperation of other government branches, sharing the stories behind key historical decisions. By the author of Active Liberty. Reprint. A best-selling book.
Rights, Responsibilities, and Virtues
Author: James E. Fleming,Linda C McClain
Publisher: Harvard University Press
Fleming and McClain defend a civic liberalism that takes seriously not just rights but responsibilities and virtues. Issues taken up include same-sex marriage, reproductive freedom, regulation of civil society and the family, education of children, and clashes between First Amendment freedoms of association and religion and antidiscrimination law.
Author: Fergal Davis,Nicola McGarrity,George Williams
The decade after 11 September 2001 saw the enactment of counter-terrorism laws around the world. These laws challenged assumptions about public institutions, human rights and constitutional law. Those challenges are particularly apparent in the context of the increased surveillance powers granted to many law enforcement and intelligence agencies. This book brings together leading legal scholars in the field of counter-terrorism and constitutional law, and focuses their attention on the issue of surveillance. The breadth of topics covered in this collection include: the growth and diversification of mechanisms of mass surveillance, the challenges that technological developments pose for constitutionalism, new actors in the surveillance state (such as local communities and private organisations), the use of surveillance material as evidence in court, and the effectiveness of constitutional and other forms of review of surveillance powers. The book brings a strong legal focus to the debate surrounding surveillance and counter-terrorism, and draws important conclusions about the constitutional implications of the expansion of surveillance powers after 9/11.
Author: James E. Fleming,Jacob T Levy
Publisher: NYU Press
In Federalism and Subsidiarity, a distinguished interdisciplinary group of scholars in political science, law, and philosophy address the application and interaction of the concept of federalism within law and government. What are the best justifications for and conceptions of federalism? What are the most useful criteria for deciding what powers should be allocated to national governments and what powers reserved to state or provincial governments? What are the implications of the principle of subsidiarity for such questions? What should be the constitutional standing of cities in federations? Do we need to “remap” federalism to reckon with the emergence of translocal and transnational organizations with porous boundaries that are not reflected in traditional jurisdictional conceptions? Examining these questions and more, this latest installation in the NOMOS series sheds new light on the allocation of power within federations.
Author: Cass R. Sunstein
Publisher: Harvard University Press
American constitutional law is at a crossroads. In a major new interpretation of the Constitution, Cass Sunstein offers a clear account of our present dilemmas and shows where we might go from here. As it is currently interpreted, the Constitution is partial, Sunstein asserts. It is, first of all, biased. Contemporary constitutional law treats the status quo as neutral and just, and any departure as necessarily partisan. But when the status quo is neither neutral nor just, Sunstein argues, reasoning of this sort produces injustice. The Constitution is also partial in another sense: its meaning has come to be identified solely with the decisions of the Supreme Court. This was not always the case, as Sunstein demonstrates; nor was it the intention of the country's founders. Instead, the Constitution often served as a catalyst for public deliberation about its general terms and aspirations--and Sunstein makes a strong case for reviving this broader understanding of the Constitution's role. In light of this analysis, Sunstein proposes solutions to some of the most hotly disputed issues of our time, including affirmative action, sex discrimination, pornography, "hate speech," and government funding of religious schools and the arts. In an especially striking argument, he claims that theequal protection clause of the Fourteenth Amendment--not the right to privacy--protects a woman's right to choose abortion. Sunstein connects these and other debates to the Constitution's historic commitment to public deliberation among political equalsand in doing so, he reconceives many of our most basic constitutional rights, such as free speech and equality under law. He urges that public deliberation about the meaning of the Constitution in turn be freed from a principle of neutrality based on the status quo. His work points to a historically sound but fundamentally new understanding of the American constitutional process as an exercise in deliberative democracy.
Author: Erwin Chemerinsky
Category: Business & Economics
"Interpreting The Constitution" doesn't fit neatly into the extensive literature on judicial review and constitutional interpretation that reconciles judicial review with democracy defined as majority rule. Indeed, Chemerinsky criticizes this method of interpretation and contends that the Constitution exists to protect political minorities and fundamental rights from majority rule. Chapter by chapter, he keenly defends this unique method of interpretation, challenges the general approach, and offers thorough, expert coverage.
A Comparative Study
Author: Jeffrey Denys Goldsworthy
Publisher: Oxford University Press
This book describes the constitutions of six major federations and how they have been interpreted by their highest courts, compares the interpretive methods and underlying principles that have guided the courts, and explores the reasons for major differences between these methods and principles. Among the interpretive methods discussed are textualism, purposivism, structuralism and originalism. Each of the six federations is the subject of a separate chapter written by a leading authority in the field: Jeffrey Goldsworthy (Australia), Peter Hogg (Canada), Donald Kommers (Germany), S.P. Sathe (India), Heinz Klug (South Africa), and Mark Tushnet (United States). Each chapter describes not only the interpretive methodology currently used by the courts, but the evolution of that methodology since the constitution was first enacted. The book also includes a concluding chapter which compares these methodologies, and attempts to explain variations by reference to different social, historical, institutional and political circumstances.
The Precedents and Principles We Live by
Author: Akhil Reed Amar
Publisher: Basic Books (AZ)
A renowned constitutional scholar explores the little-understood relationship between the written Constitution and the many external factors that shape our interpretations of this foundational document.
Author: Michael Paulsen,Luke Paulsen
Publisher: Basic Books
From war powers to health care, freedom of speech to gun ownership, religious liberty to abortion, practically every aspect of American life is shaped by the Constitution. This vital document, along with its history of political and judicial interpretation, governs our individual lives and the life of our nation. Yet most of us know surprisingly little about the Constitution itself, and are woefully unprepared to think for ourselves about recent developments in its long and storied history. The Constitution: An Introduction is the definitive modern primer on the US Constitution. Michael Stokes Paulsen, one of the nation’s most provocative and accomplished scholars of the Constitution, and his son Luke Paulsen, a gifted young writer and lay scholar, have combined to write a lively introduction to the supreme law of the United States, covering the Constitution’s history and meaning in clear, accessible terms. Beginning with the Constitution’s birth in 1787, Paulsen and Paulsen offer a grand tour of its provisions, principles, and interpretation, introducing readers to the characters and controversies that have shaped the Constitution in the 200-plus years since its creation. Along the way, the authors provide correctives to the shallow myths and partial truths that pervade so much popular treatment of the Constitution, from school textbooks to media accounts of today’s controversies, and offer powerful insights into the Constitution’s true meaning. A lucid and engaging guide, The Constitution: An Introduction provides readers with the tools to think critically and independently about constitutional issues—a skill that is ever more essential to the continued flourishing of American democracy.
The Declaration of Independence and Constitutional Interpretation
Author: Scott Douglas Gerber
Publisher: NYU Press
To Secure These Rights enters the fascinating--and often contentious--debate over constitutional interpretation. Scott Douglas Gerber here argues that the Constitution of the United States should be interpreted in light of the natural rights political philosophy of the Declaration of Independence and that the Supreme Court is the institution of American government that should be primarily responsible for identifying and applying that philosophy in American life. Importantly, the theory advanced in this book--what Gerber calls liberal originalism--is neither consistently liberal nor consistently conservative in the modern conception of those terms. Rather, the theory is liberal in the classic sense of viewing the basic purpose of government to be safeguarding the natural rights of individuals. As Thomas Jefferson wrote in the Declaration of Independence, to secure these rights, governments are instituted among men. In essence, Gerber maintains that the Declaration articulates the philosophical ends of our nation and that the Constitution embodies the means to effectuate those ends. Gerber's analysis reveals that the Constitution cannot be properly understood without recourse to history, political philosophy, and law.
Interpreting Our Democratic Constitution
Author: Stephen Breyer
Category: Political Science
A brilliant new approach to the Constitution and courts of the United States by Supreme Court Justice Stephen Breyer.For Justice Breyer, the Constitution’s primary role is to preserve and encourage what he calls “active liberty”: citizen participation in shaping government and its laws. As this book argues, promoting active liberty requires judicial modesty and deference to Congress; it also means recognizing the changing needs and demands of the populace. Indeed, the Constitution’s lasting brilliance is that its principles may be adapted to cope with unanticipated situations, and Breyer makes a powerful case against treating it as a static guide intended for a world that is dead and gone. Using contemporary examples from federalism to privacy to affirmative action, this is a vital contribution to the ongoing debate over the role and power of our courts. From the Trade Paperback edition.
A Comparative Analysis
Author: Maartje de Visser
Publisher: A&C Black
Constitutions serve to delineate state powers and enshrine basic rights. Such matters are hardly uncontroversial, but perhaps even more controversial are the questions of who (should) uphold(s) the Constitution and how constitutional review is organised. These two questions are the subject of this book by Maartje de Visser, which offers a comprehensive, comparative analysis of how 11 representative European countries answer these questions, as well as a critical appraisal of the EU legal order in light of these national experiences. Where possible, the book endeavours to identify Europe's common and diverse constitutional traditions of constitutional review. The raison d'Ãatre, jurisdiction and composition of constitutional courts are explored and so too are core features of the constitutional adjudicatory process. Yet, this book also deliberately draws attention to the role of non-judicial actors in upholding the Constitution, as well as the complex interplay amongst constitutional courts and other actors at the national and European level. The Member States featured are: Belgium, the Czech Republic, Finland, France, Germany, Italy, Hungary, the Netherlands, Spain, Poland, and the United Kingdom. This book is intended for practitioners, academics and students with an interest in (European) constitutional law.