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 12
... segregation in transportation facilities in part by invoking these facts to establish the unquestioned legitimacy of public school segregation at the time the Amendment was enacted — ironically enough , citing ( id . at 544 ) an ...
... segregation in transportation facilities in part by invoking these facts to establish the unquestioned legitimacy of public school segregation at the time the Amendment was enacted — ironically enough , citing ( id . at 544 ) an ...
Halaman 14
... segregation laws would have been to overturn the various measures excluding blacks from the elec- torate , rather than directly to invalidate the segregation laws them- selves . This remedy would also have more easily satisfied origi ...
... segregation laws would have been to overturn the various measures excluding blacks from the elec- torate , rather than directly to invalidate the segregation laws them- selves . This remedy would also have more easily satisfied origi ...
Halaman 282
... [ segregation laws ] will not produce a social transition . . . . It is apparent that our decision does not end but begins the struggle over segregation . " Notwithstanding the pragmatic cast of all these statements , a normative premise ...
... [ segregation laws ] will not produce a social transition . . . . It is apparent that our decision does not end but begins the struggle over segregation . " Notwithstanding the pragmatic cast of all these statements , a normative premise ...
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