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 64
... favor of a declaration of rights , you omit one which has great weight with me , the legal check which it puts into the hands of the judiciary . This is a body , which if rendered independent , and kept strictly to their own department ...
... favor of a declaration of rights , you omit one which has great weight with me , the legal check which it puts into the hands of the judiciary . This is a body , which if rendered independent , and kept strictly to their own department ...
Halaman 253
... favor their own economic class's interests . By this reading , the Lochner sin is not committed when judges protect poor people or blacks or gays by overturning legislation enacted by a majority consisting of wealthy people or whites or ...
... favor their own economic class's interests . By this reading , the Lochner sin is not committed when judges protect poor people or blacks or gays by overturning legislation enacted by a majority consisting of wealthy people or whites or ...
Halaman 279
... favor , at the moment , going no farther than to enter a decree that the state constitutions and statutes relied upon as requiring or authorizing segregation merely on account of race or color , are unconstitutional . I would order a ...
... favor , at the moment , going no farther than to enter a decree that the state constitutions and statutes relied upon as requiring or authorizing segregation merely on account of race or color , are unconstitutional . I would order a ...
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