Constitutional Construction

Divided Powers and Constitutional Meaning

Author: Keith E Whittington

Publisher: Harvard University Press

ISBN: 9780674045156

Category: Law

Page: 316

View: 2245

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

American Constitutional Law

Powers and Liberties

Author: Calvin Massey

Publisher: Wolters Kluwer Law & Business

ISBN: 1454874821

Category: Law

Page: 1376

View: 3556

Shorter than most Constitutional Law casebooks, American Constitutional Law: Powers and Liberties, 5E provides a broad survey of the field without overwhelming students. The basics of constitutional theory are presented without getting mired in highly theoretical discussions and cases are tightly edited to focus on the most important aspects with additional cases on select topics condensed into narrative summaries. The book focuses on cases and expository text rather than extensive academic commentary, and introductory text provides direction to students as they read and analyze the materials that follow. Additionally, challenging hypotheticals are provided throughout the text for use as student self-assessments or to launch stimulating class discussions. This highly teachable book can be used for a one- or two-semester course and is easily adaptable to suit each professor s preferences.
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: 9389

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

Restoring the Lost Constitution

The Presumption of Liberty

Author: Randy E. Barnett

Publisher: Princeton University Press

ISBN: 140084813X

Category: Law

Page: 448

View: 1066

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: 1528

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: 5753

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

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: 5991

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: 8346

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: 1626

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

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: 1219

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

Die Federalist papers

Author: Alexander Hamilton,James Madison,John Jay

Publisher: C.H.Beck

ISBN: 9783406547546

Category: Constitutional history

Page: 583

View: 4411

Posted in Constitutional history

Norms and the Law

Author: John N. Drobak

Publisher: Cambridge University Press

ISBN: 0521862256

Category: Law

Page: 298

View: 6932

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

Contemporary Authors

Author: Gale Group

Publisher: Gale Cengage

ISBN: 9780787645953

Category: Biography & Autobiography

Page: 471

View: 2068

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

Der Geist der Gesetze

Author: Charles Louis de Secondat de Montesquieu

Publisher: N.A

ISBN: N.A

Category:

Page: 150

View: 3849

Posted in

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: 7707

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

Congress and the Constitution

Author: Goodrich Professor of Law Neal Devins,Keith E. Whittington

Publisher: N.A

ISBN: 9780822387114

Category: Constitutional law

Page: 333

View: 8636

Essays contest notion of the absolute preeminence of judicial review in constitutional interpretation, analyzing the role of Congress as a constitutional interpreter and responsible constitutional agent.
Posted in Constitutional law

Constitutional Theory

Arguments and Perspectives

Author: Michael J. Gerhardt

Publisher: Lexis Nexis Matthew Bender

ISBN: N.A

Category: Law

Page: 731

View: 9337

Posted in Law

The Madisonian Constitution

Author: George Thomas

Publisher: JHUP

ISBN: N.A

Category: Political Science

Page: 264

View: 2621

Today, we think of constitutional questions as being settled by the Supreme Court.But that is not always the case, nor is it what the framers intended in constructing the three-branch federal government. This volume examines four crucial moments in the United States' political history -- the Civil War and Reconstruction, the Progressive Era, Franklin Delano Roosevelt's presidency and the New Deal, and the Reagan revolution -- to illustrate the Madisonian view that the present rise of judicial supremacy actually runs counter to the Constitution as established at the nation's founding. George Thomas opens by discussing how the Constitution encourages an antagonistic approach to settling disputes, thereby preserving itself as the nation's fundamental law rather then ceding that role to the president, Congress, or Supreme Court. In considering the four historical case studies, he focuses on judicial interpretations and the political branches' responses to them to demonstrate that competing conceptions of constitutional authority and meaning, as well as intergovernmental disputes themselves -- rather than any specific outcome -- strengthen the nature of the nation's founding document as a political instrument. Engagingly written and soundly argued, this study clarifies and highlights the political origins of the nation's foundational document and argues that American constitutionalism is primarily about countervailing power not legal limits enforced by courts. -- Michael P. Zuckert
Posted in Political Science

Judicial nominations, filibusters, and the Constitution

when a majority is denied its right to consent : hearing before the Subcommittee on the Constitution, Civil Rights, and Property Rights of the Committee on the Judiciary, United States Senate, One Hundred Eighth Congress, first session, May 6, 2003

Author: United States. Congress. Senate. Committee on the Judiciary. Subcommittee on the Constitution, Civil Rights, and Property Rights

Publisher: Government Printing Office

ISBN: N.A

Category: Law

Page: 393

View: 9007

Posted in Law