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. |
Dari dalam buku
Hasil 1-3 dari 89
Halaman 20
... resolution . " Neutrality " is no longer a fashionable word for the current proponents of interpretationism , but they share with Wechsler the same underlying view of the courts as a forum for the authorita- tive resolution of disputes ...
... resolution . " Neutrality " is no longer a fashionable word for the current proponents of interpretationism , but they share with Wechsler the same underlying view of the courts as a forum for the authorita- tive resolution of disputes ...
Halaman 29
... resolution of this dispute - whether this resolution is effected by majority vote or by judicial override on behalf of the previously defeated minority . In Brown , the Supreme Court stepped between the poles of this contradiction with ...
... resolution of this dispute - whether this resolution is effected by majority vote or by judicial override on behalf of the previously defeated minority . In Brown , the Supreme Court stepped between the poles of this contradiction with ...
Halaman 69
... Resolution was drafted by Jefferson and did indeed provide support for the states - rights nullifiers of 1828-1830 ; the Resolution recited that the Consti- tution was a compact entered by the states and that the national government was ...
... Resolution was drafted by Jefferson and did indeed provide support for the states - rights nullifiers of 1828-1830 ; the Resolution recited that the Consti- tution was a compact entered by the states and that the national government was ...
Isi
White Bosses | 1 |
The Constitutional Question | 9 |
Madisons Institutional Answer | 34 |
Hak Cipta | |
11 bagian lainnya tidak diperlihatkan
Edisi yang lain - Lihat semua
Istilah dan frasa umum
abortion acknowledged action Alexander Bickel American appeared Bickel blacks Brown Brown II capital punishment Civil Rights claim cloture conception Congress congressional acts constitutional Convention death penalty decision democratic dispute dissent draft Dred Scott electoral enacted enforcement equality principle federal Federalist 51 Federalist Papers force founders Fourteenth Amendment fugitive slave Fuller Court Furman gentry Hamilton hostility impeachment imposed Indians institutional invalidating invoked issue Jackson James Madison Jefferson judges judicial authority judicial review judicial supremacy judiciary jury legislative legislature legitimacy Lincoln litigation Lochner Madison majoritarian Marbury Marshall Marshall's McCulloch ment Missouri Compromise moral Nixon Nullification Crisis opinion originalist overturn partisan party Plessy polarized conflict political premise President Press Prigg protect question race segregation racial regarding Republican resolution role rule Senate slavery social conflict South southern whites sovereignty statute subjugative Supreme Court tion unanimity Union Univ Virginia vote Yale L. J. York