Constitutional Construction

Divided Powers and Constitutional Meaning

Author: Keith E Whittington

Publisher: Harvard University Press

ISBN: 9780674045156

Category: Law

Page: 316

View: 9950

This book argues that the Constitution has a dual nature. The first aspect, on which legal scholars have focused, is the degree to which the Constitution acts as a binding set of rules that can be neutrally interpreted and externally enforced by the courts against government actors. This is the process of constitutional interpretation. But according to Keith Whittington, the Constitution also permeates politics itself, to guide and constrain political actors in the very process of making public policy. In so doing, it is also dependent on political actors, both to formulate authoritative constitutional requirements and to enforce those fundamental settlements in the future. Whittington characterizes this process, by which constitutional meaning is shaped within politics at the same time that politics is shaped by the Constitution, as one of construction as opposed to interpretation. Whittington goes on to argue that ambiguities in the constitutional text and changes in the political situation push political actors to construct their own constitutional understanding. The construction of constitutional meaning is a necessary part of the political process and a regular part of our nation's history, how a democracy lives with a written constitution. The Constitution both binds and empowers government officials. Whittington develops his argument through intensive analysis of four important cases: the impeachments of Justice Samuel Chase and President Andrew Johnson, the nullification crisis, and reforms of presidential-congressional relations during the Nixon presidency.
Posted in Law

The Challenge of Originalism

Theories of Constitutional Interpretation

Author: Grant Huscroft,Bradley W. Miller

Publisher: Cambridge University Press

ISBN: 1139505130

Category: Law

Page: N.A

View: 5689

Originalism is a force to be reckoned with in constitutional interpretation. At one time a monolithic theory of constitutional interpretation, contemporary originalism has developed into a sophisticated family of theories about how to interpret and reason with a constitution. Contemporary originalists harness the resources of linguistic, moral, and political philosophy to propose methodologies for the interpretation of constitutional texts and provide reasons for fidelity to those texts. The essays in this volume, which includes contributions from the flag bearers of several competing schools of constitutional interpretation, provides an introduction to the development of originalist thought, showcases the great range of contemporary originalist constitutional scholarship, and situates competing schools of thought in dialogue with each other. They also make new contributions to the methodological and normative disputes between originalists and non-originalists, and among originalists themselves.
Posted in Law

Constitutional Argument and Institutional Structure in the United States

Author: Nicholas Papaspyrou

Publisher: Bloomsbury Publishing

ISBN: 1509917187

Category: Law

Page: 256

View: 3065

US constitutional jurisprudence often conflates two distinct enquiries: how to interpret the Constitution and how to allocate interpretive authority. This book explains the distinct role of judgements about interpretive authority in constitutional practice. It argues that these judgements do not determine what qualifies as good constitutional argument, and cannot substitute for it. Rather, they specify the division of labour between the political branches and the judiciary in forming applicable constitutional determinations. This explanation of the structure of constitutional reasoning sets the stage for the development of a normative theory about each enquiry. The book advances a theory of substantive constitutional argument. It argues that constitutional interpretation is a special kind of practical reasoning, aiming to construct and specify morally sound accounts of the Constitution and surrounding constitutional practice. Yet, this task is entrusted to a scheme of institutions, as agents of free and equal citizens. The standard of review is an interlocking component of that scheme, regulating the judicial assignment. As such, it should aim to facilitate best performance of the overall interpretive task, so that the judicial process settles on appropriate constitutional determinations; grounded on morally sound reasons that reach all citizens and uphold the fundamental commitments to freedom and equal citizenship.
Posted in Law

John Marshall and the Heroic Age of the Supreme Court

Author: R. Kent Newmyer

Publisher: LSU Press

ISBN: 0807132497

Category: Law

Page: 511

View: 8713

John Marshall (1755--1835) was arguably the most important judicial figure in American history. As the fourth chief justice of the United States Supreme Court, serving from 1801 to1835, he helped move the Court from the fringes of power to the epicenter of constitutional government. His great opinions in cases like Marbury v. Madison and McCulloch v. Maryland are still part of the working discourse of constitutional law in America. Drawing on a new and definitive edition of Marshall's papers, R. Kent Newmyer combines engaging narrative with new historiographical insights in a fresh interpretation of John Marshall's life in the law. More than the summation of Marshall's legal and institutional accomplishments, Newmyer's impressive study captures the nuanced texture of the justice's reasoning, the complexity of his mature jurisprudence, and the affinities and tensions between his system of law and the transformative age in which he lived. It substantiates Oliver Wendell Holmes Jr.'s view of Marshall as the most representative figure in American law.
Posted in Law

Restoring the Lost Constitution

The Presumption of Liberty

Author: Randy E. Barnett

Publisher: Princeton University Press

ISBN: 140084813X

Category: Law

Page: 448

View: 2135

The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. In Restoring the Lost Constitution, Randy Barnett argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost. Barnett establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a "presumption of liberty" to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. He also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people. As clearly argued as it is insightful and provocative, Restoring the Lost Constitution forcefully disputes the conventional wisdom, posing a powerful challenge to which others must now respond. This updated edition features an afterword with further reflections on individual popular sovereignty, originalist interpretation, judicial engagement, and the gravitational force that original meaning has exerted on the Supreme Court in several recent cases.
Posted in Law

Constitutional Interpretation

The Basic Questions

Author: Sotirios A. Barber,James E. Fleming

Publisher: OUP USA

ISBN: 0195328582

Category: Law

Page: 201

View: 2356

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.
Posted in Law

Thomas Jefferson and Executive Power

Author: Jeremy D. Bailey

Publisher: Cambridge University Press

ISBN: 1139466291

Category: Political Science

Page: N.A

View: 2029

By revisiting Thomas Jefferson's understanding of executive power this book offers a new understanding of the origins of presidential power. Before Jefferson was elected president, he arrived at a way to resolve the tension between constitutionalism and executive power. Because his solution would preserve a strict interpretation of the Constitution as well as transform the precedents left by his Federalist predecessors, it provided an alternative to Alexander Hamilton's understanding of executive power. In fact, a more thorough account of Jefferson's political career suggests that Jefferson envisioned an executive that was powerful, or 'energetic', because it would be more explicitly attached to the majority will. Jefferson's Revolution of 1800, often portrayed as a reversal of the strong presidency, was itself premised on energy in the executive and was part of Jefferson's project to enable the Constitution to survive and even flourish in a world governed by necessity.
Posted in Political Science

Constitutional Interpretation

Textual Meaning, Original Intent, and Judicial Review

Author: Keith E. Whittington

Publisher: N.A

ISBN: 9780700609949

Category: Constitutional law

Page: 299

View: 2502

Posted in Constitutional law

The Constitution on the Campaign Trail

The Surprising Political Career of America's Founding Document

Author: Andrew Busch

Publisher: Rowman & Littlefield

ISBN: 9780742559011

Category: Law

Page: 319

View: 786

The Constitution is the fundamental governing document of the United States. But to what extent do candidates and parties make constitutional arguments in the course of American elections? By examining party platforms, candidate messages, presidential debates, and television ads, The Constitution on the Campaign Trail answers that question, and the results are fascinating. Busch finds evidence for both a long, broad decline in the use of constitutional rhetoric since the mid-19th century and a limited resurgence in that rhetoric over the last four decades. The political analysis found here is firmly grounded in historical research and the conclusions reached are trenchant.
Posted in Law

The Revolutionary Constitution

Author: David J. Bodenhamer

Publisher: Oxford University Press

ISBN: 019991303X

Category: History

Page: 296

View: 6816

The framers of the Constitution chose their words carefully when they wrote of a more perfect union--not absolutely perfect, but with room for improvement. Indeed, we no longer operate under the same Constitution as that ratified in 1788, or even the one completed by the Bill of Rights in 1791--because we are no longer the same nation. In The Revolutionary Constitution, David J. Bodenhamer provides a comprehensive new look at America's basic law, integrating the latest legal scholarship with historical context to highlight how it has evolved over time. The Constitution, he notes, was the product of the first modern revolution, and revolutions are, by definition, moments when the past shifts toward an unfamiliar future, one radically different from what was foreseen only a brief time earlier. In seeking to balance power and liberty, the framers established a structure that would allow future generations to continually readjust the scale. Bodenhamer explores this dynamic through seven major constitutional themes: federalism, balance of powers, property, representation, equality, rights, and security. With each, he takes a historical approach, following their changes over time. For example, the framers wrote multiple protections for property rights into the Constitution in response to actions by state governments after the Revolution. But twentieth-century courts--and Congress--redefined property rights through measures such as zoning and the designation of historical landmarks (diminishing their commercial value) in response to the needs of a modern economy. The framers anticipated just such a future reworking of their own compromises between liberty and power. With up-to-the-minute legal expertise and a broad grasp of the social and political context, this book is a tour de force of Constitutional history and analysis.
Posted in History

Dishonorable Passions

Sodomy Laws in America, 1861-2003

Author: William N. Eskridge Jr.

Publisher: Penguin

ISBN: 1440631107

Category: History

Page: 528

View: 8577

From the Pentagon to the wedding chapel, there are few issues more controversial today than gay rights. As William Eskridge persuasively demonstrates in Dishonorable Passions, there is nothing new about this political and legal obsession. The American colonies and the early states prohibited sodomy as the crime against nature, but rarely punished such conduct if it took place behind closed doors. By the twentieth century, America’s emerging regulatory state targeted degenerates and (later) homosexuals. The witch hunts of the McCarthy era caught very few Communists but ruined the lives of thousands of homosexuals. The nation’s sexual revolution of the 1960s fueled a social movement of people seeking repeal of sodomy laws, but it was not until the Supreme Court’s decision in Lawrence v. Texas (2003) that private sex between consenting adults was decriminalized. With dramatic stories of both the hunted (Walt Whitman and Margaret Mead) and the hunters (Earl Warren and J. Edgar Hoover), Dishonorable Passions reveals how American sodomy laws affected the lives of both homosexual and heterosexual Americans. Certain to provoke heated debate, Dishonorable Passions is a must-read for anyone interested in the history of sexuality and its regulation in the United States
Posted in History

Norms and the Law

Author: John N. Drobak

Publisher: Cambridge University Press

ISBN: 0521862256

Category: Law

Page: 298

View: 1306

This book examines the relationship between law and norms.
Posted in Law

The Invention of Party Politics

Federalism, Popular Sovereignty, and Constitutional Development in Jacksonian Illinois

Author: Gerald Leonard

Publisher: Univ of North Carolina Press

ISBN: 0807861316

Category: Political Science

Page: 344

View: 9968

This ambitious work uncovers the constitutional foundations of that most essential institution of modern democracy, the political party. Taking on Richard Hofstadter's classic The Idea of a Party System, it rejects the standard view that Martin Van Buren and other Jacksonian politicians had the idea of a modern party system in mind when they built the original Democratic party. Grounded in an original retelling of Illinois politics of the 1820s and 1830s, the book also includes chapters that connect the state-level narrative to national history, from the birth of the Constitution to the Dred Scott case. In this reinterpretation, Jacksonian party-builders no longer anticipate twentieth-century political assumptions but draw on eighteenth-century constitutional theory to justify a party division between "the democracy" and "the aristocracy." Illinois is no longer a frontier latecomer to democratic party organization but a laboratory in which politicians use Van Buren's version of the Constitution, states' rights, and popular sovereignty to reeducate a people who had traditionally opposed party organization. The modern two-party system is no longer firmly in place by 1840. Instead, the system remains captive to the constitutional commitments on which the Democrats and Whigs founded themselves, even as the specter of sectional crisis haunts the parties' constitutional visions.
Posted in Political Science

Contemporary Authors

Author: Gale Group

Publisher: Gale Cengage

ISBN: 9780787645953

Category: Biography & Autobiography

Page: 471

View: 7376

Your students and users will find biographical information on approximately 300 modern writers in this volume of Contemporary Authors(r) .
Posted in Biography & Autobiography

Judicial Review and Constitutional Politics

Author: Keith E. Whittington,William Nelson Cromwell Professor of Politics and the Director of Graduate Studies in the Department of Politics Keith E Whittington

Publisher: N.A

ISBN: 9780872292185

Category: Constitutional law

Page: 66

View: 1394

Origins of judicial review in the United States -- Early judicial review -- Slavery and war -- The administrative state and a national economy -- A rights revolution -- Judicial oscillation
Posted in Constitutional law

Constitutional Identity

Author: Gary J. Jacobsohn

Publisher: Harvard University Press

ISBN: 0674047664

Category: Law

Page: 368

View: 8432

In Constitutional Identity, Gary Jeffrey Jacobsohn argues that a constitution acquires an identity through experience—from a mix of the political aspirations and commitments that express a nation’s past and the desire to transcend that past. It is changeable but resistant to its own destruction, and manifests itself in various ways, as Jacobsohn shows in examples as far flung as India, Ireland, Israel, and the United States. Jacobsohn argues that the presence of disharmony—both the tensions within a constitutional order and those that exist between a constitutional document and the society it seeks to regulate—is critical to understanding the theory and dynamics of constitutional identity. He explores constitutional identity’s great practical importance for some of constitutionalism’s most vexing questions: Is an unconstitutional constitution possible? Is the judicial practice of using foreign sources to resolve domestic legal disputes a threat to vital constitutional interests? How are the competing demands of transformation and preservation in constitutional evolution to be balanced?
Posted in Law

Living Originalism

Author: Jack M. Balkin

Publisher: Harvard University Press

ISBN: 0674063031

Category: Law

Page: 480

View: 5269

Originalism and living constitutionalism, often seen as opposing views, are not in conflict. So argues Jack Balkin, a leading constitutional scholar, in this long-awaited book. Step by step, Balkin shows how both liberals and conservatives play important roles in constitutional construction, and offers a way past the angry polemics of our era.
Posted in Law

Speak Freely

Why Universities Must Defend Free Speech

Author: Keith E. Whittington

Publisher: Princeton University Press

ISBN: 140088988X

Category: Political Science

Page: 232

View: 5863

Why free speech is the lifeblood of colleges and universities Free speech is under attack at colleges and universities today, with critics on and off campus challenging the value of open inquiry and freewheeling intellectual debate. Too often speakers are shouted down, professors are threatened, and classes are disrupted. In Speak Freely, Keith Whittington argues that universities must protect and encourage free speech because vigorous free speech is the lifeblood of the university. Without free speech, a university cannot fulfill its most basic, fundamental, and essential purposes, including fostering freedom of thought, ideological diversity, and tolerance. Examining such hot-button issues as trigger warnings, safe spaces, hate speech, disruptive protests, speaker disinvitations, the use of social media by faculty, and academic politics, Speak Freely describes the dangers of empowering campus censors to limit speech and enforce orthodoxy. It explains why free speech and civil discourse are at the heart of the university’s mission of creating and nurturing an open and diverse community dedicated to learning. It shows why universities must make space for voices from both the left and right. And it points out how better understanding why the university lives or dies by free speech can help guide everyone—including students, faculty, administrators, and alumni—when faced with difficult challenges such as unpopular, hateful, or dangerous speech. Timely and vitally important, Speak Freely demonstrates why universities can succeed only by fostering more free speech, more free thought—and a greater tolerance for both.
Posted in Political Science