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 43
Halaman 59
... effect of persistent partisan- ship in their deliberations.73 Second , it appeared that the Council " misconstrue [ d ] the limits prescribed for the legislative and exec- utive departments . . . " Finally , " the decisions of the ...
... effect of persistent partisan- ship in their deliberations.73 Second , it appeared that the Council " misconstrue [ d ] the limits prescribed for the legislative and exec- utive departments . . . " Finally , " the decisions of the ...
Halaman 228
... effect is to fetter and degrade the State governments by subjecting them to the control of Congress , in the exercise of powers ... of the most ordinary and fundamental character ; when in fact it radically changes the whole theory of ...
... effect is to fetter and degrade the State governments by subjecting them to the control of Congress , in the exercise of powers ... of the most ordinary and fundamental character ; when in fact it radically changes the whole theory of ...
Halaman 428
... effects will be devastating to the Negroes involved and , perhaps , to Negroes in the whole region , we believe that the long - run effect of the present opinion crisis in the South , because it is a catharsis for the whites , will be a ...
... effects will be devastating to the Negroes involved and , perhaps , to Negroes in the whole region , we believe that the long - run effect of the present opinion crisis in the South , because it is a catharsis for the whites , will be a ...
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 Amendment American appeared authority basis blacks branches Brown Civil claim clearly conception concern conclusion conflict Congress congressional constitutional Convention course criticism death penalty decision direct directly effect election enacted enforcement equality existence federal Federalist follow force founders fundamental ground Hamilton House ideal identified immediate imposed Indians institutional interpretation invalidating issue Jackson Jefferson John judges judicial judicial authority judiciary Justices least legislative legislature letter Lincoln Madison majority Marshall Marshall's master means ment moral moreover mutual North observed opinion original party political possibility practical premise President Press principle protect question race racial reason regarding relations remained Republican resolution resolve response role rule segregation Senate slave slavery social society South southern specific statute subjugative supremacy Supreme Court tion ultimate Union United Univ Virginia vote whites York