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 6
... judicial authority would dictate . Chapter 10 looks to the future , to show how this egalitarian conception would reshape judicial interventions in other deeply divisive contemporary social dis- putes , particularly in race relations ...
... judicial authority would dictate . Chapter 10 looks to the future , to show how this egalitarian conception would reshape judicial interventions in other deeply divisive contemporary social dis- putes , particularly in race relations ...
Halaman 102
... judicial su- premacy as preferable to majority tyranny , they fall into the trap that Lincoln and Madison identified : thus the sterility of the con- temporary debate between proponents and opponents of “ judicial activism , " that ...
... judicial su- premacy as preferable to majority tyranny , they fall into the trap that Lincoln and Madison identified : thus the sterility of the con- temporary debate between proponents and opponents of “ judicial activism , " that ...
Halaman 120
... judicial supremacy since members of Congress and the President take the same oath . But in the context of the specific examples Marshall had set out , his oath argument was not in- tended to establish judicial supremacy : " This oath ...
... judicial supremacy since members of Congress and the President take the same oath . But in the context of the specific examples Marshall had set out , his oath argument was not in- tended to establish judicial supremacy : " This oath ...
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