The Constitution in ConflictBelknap Press, 1992 - 462 halaman Lincoln was not alone in believing that the Constitution could be interpreted by any of the three branches of the government. Today, however, the Supreme Court's role as the ultimate arbiter of constitutional matters is widely accepted. But as Robert Burt shows in his provocative new book, this was not always the case, nor should it be. In a remarkably innovative reconstruction of constitutional history, Burt traces the controversy over judicial supremacy back to the founding fathers, with Madison and Hamilton as the principal antagonists. The conflicting views these founders espoused--equal interpretive powers among the federal branches on one hand and judicial supremacy on the other--remain plausible readings of "original intent" and so continue to present us with a choice. Drawing extensively on Lincoln's conception of political equality, Burt argues convincingly that judicial supremacy and majority rule are both inconsistent with the egalitarian democratic ideal. The proper task of the judiciary, he contends--as epitomized in Brown v. Board of Education--is to actively protect minorities against "enslaving" legislative defeats while, at the same time, to refrain from awarding conclusive "victory" to these minorities against their adversaries. From this premise, Burt goes on to examine key decisions such as Roe v. Wade, U.S. v. Nixon, and the death penalty cases, all of which demonstrate how the Court has fallen away from egalitarian jurisprudence and returned to an essentially authoritarian conception of its role. With an eye to the urgent issues at stake in these cases, Burt identifies the alternative results that an egalitarian conception of judicial authority would dictate. Thefirst fully articulated presentation of the Constitution as a communally interpreted document in which the Supreme Court plays an important, but not predominant, role, The Constitution in Conflict has dramatic implications for both the theory and the practice of constitutional law. |
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Halaman 58
... Federalist Papers . Madison's essays are not read by most commentators as addressing judicial review , 64 which leaves the field apparently clear for Hamilton's Federalist 78 and misses the differences between the two men on this issue ...
... Federalist Papers . Madison's essays are not read by most commentators as addressing judicial review , 64 which leaves the field apparently clear for Hamilton's Federalist 78 and misses the differences between the two men on this issue ...
Halaman 61
... Federalist 51 , Madison noted the need to protect minorities against oppressive majorities and observed , There are ... Federalist 78. Madison went no further than this indirect criticism in his contributions to the Federalist Papers ...
... Federalist 51 , Madison noted the need to protect minorities against oppressive majorities and observed , There are ... Federalist 78. Madison went no further than this indirect criticism in his contributions to the Federalist Papers ...
Halaman 62
... Federalist 78 that his " doctrine [ of judicial review ] would [ not ] imply a superiority of the judiciary to the legislative power " because " the power of the people is superior to both " and the judiciary is thus the " intermediate ...
... Federalist 78 that his " doctrine [ of judicial review ] would [ not ] imply a superiority of the judiciary to the legislative power " because " the power of the people is superior to both " and the judiciary is thus the " intermediate ...
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