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 157
... Indians . Though ritualized protesta- tions of beneficence persisted , annihilating subjugation of Indians became more openly and predominantly embraced in both word and deed . Even the language of beneficence shifted in a revealing way ...
... Indians . Though ritualized protesta- tions of beneficence persisted , annihilating subjugation of Indians became more openly and predominantly embraced in both word and deed . Even the language of beneficence shifted in a revealing way ...
Halaman 163
... Indians had an exclusive , dependent relation- ship with the federal government.33 For all their apparent differences , Marshall and Jackson had the same view of political relations between whites and Indians : that perpetual warfare ...
... Indians had an exclusive , dependent relation- ship with the federal government.33 For all their apparent differences , Marshall and Jackson had the same view of political relations between whites and Indians : that perpetual warfare ...
Halaman 404
... Indian tribes " ; Article I , section 2 , apportioned electoral representation and direct taxes on the basis of " free Persons ... excluding Indians not taxed , [ and ] three fifths of all other Persons . " These " other Persons " were ...
... Indian tribes " ; Article I , section 2 , apportioned electoral representation and direct taxes on the basis of " free Persons ... excluding Indians not taxed , [ and ] three fifths of all other Persons . " These " other Persons " were ...
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White Bosses | 1 |
The Constitutional Question | 9 |
Madisons Institutional Answer | 34 |
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