Author: Keith E. Whittington
Release Date: 1999
Constitutional interpretation -- The dilemmas of contemporary constitutional theory -- The authority of originalism and the nature of the written Constitution -- A defense of originalism and the written Constitution -- Popular sovereignty and originalism -- The nature and limits of originalist jurisprudence.
Author: Keith E Whittington
Publisher: Harvard University Press
Release Date: 2009-06-01
This book argues that the Constitution has a dual nature. The first aspect, on which legal scholars have focused, is the degree to which the Constitution acts as a binding set of rules that can be neutrally interpreted and externally enforced by the courts against government actors. This is the process of constitutional interpretation. But according to Keith Whittington, the Constitution also permeates politics itself, to guide and constrain political actors in the very process of making public policy. In so doing, it is also dependent on political actors, both to formulate authoritative constitutional requirements and to enforce those fundamental settlements in the future. Whittington characterizes this process, by which constitutional meaning is shaped within politics at the same time that politics is shaped by the Constitution, as one of construction as opposed to interpretation. Whittington goes on to argue that ambiguities in the constitutional text and changes in the political situation push political actors to construct their own constitutional understanding. The construction of constitutional meaning is a necessary part of the political process and a regular part of our nation's history, how a democracy lives with a written constitution. The Constitution both binds and empowers government officials. Whittington develops his argument through intensive analysis of four important cases: the impeachments of Justice Samuel Chase and President Andrew Johnson, the nullification crisis, and reforms of presidential-congressional relations during the Nixon presidency.
Author: Leonard W. Levy
Publisher: Ivan R. Dee
Release Date: 2000-08-15
For more than two hundred years a debate has raged between those who believe that jurists should follow the original intentions of the Founding Fathers and those who argue that the Constitution is a living document subject to interpretation by each succeeding generation. The controversy has flared anew in our own time as a facet of the battle between conservatives and liberals. In Original Intent and the Framers' Constitution, the distinguished constitutional scholar Leonard Levy cuts through the Gordian Knot of claim and counterclaim with an argument that is clear, logical, and compelling. Rejecting the views of both left and right, he evaluates the doctrine of "original intent" by examining the sources of constitutional law and landmark cases. Finally, he finds no evidence for grounding the law in original intent. Judicial activism—the constant reinterpretation of the Constitution—he sees as inevitable.
Author: Randy E. Barnett
Publisher: Princeton University Press
Release Date: 2013-11-24
The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. In Restoring the Lost Constitution, Randy Barnett argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost. Barnett establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a "presumption of liberty" to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. He also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people. As clearly argued as it is insightful and provocative, Restoring the Lost Constitution forcefully disputes the conventional wisdom, posing a powerful challenge to which others must now respond. This updated edition features an afterword with further reflections on individual popular sovereignty, originalist interpretation, judicial engagement, and the gravitational force that original meaning has exerted on the Supreme Court in several recent cases.
Author: Glenn P. Hastedt
Publisher: Nova Publishers
Release Date: 2007-01-01
Genre: Political Science
The American Presidency has become one of the most powerful offices in the world with the ascendency of American power in the 20th century.'White House Studies Compendium' brings together piercing analyses of the American presidency -- dealing with both currect issues and historical events.The compendia are the bound issues of 'White House Studies' with the addition of a comprehensive subject index.
This book explains how the debate over originalism emerged from the interaction of constitutional theory, U.S. Supreme Court decisions, and American political development. Refuting the contention that originalism is a recent concoction of political conservatives like Robert Bork, Johnathan O'Neill asserts that recent appeals to the origin of the Constitution in Supreme Court decisions and commentary, especially by Justices Antonin Scalia and Clarence Thomas, continue an established pattern in American history. Originalism in American Law and Politics is distinguished by its historical approach to the topic. Drawing on constitutional commentary and treatises, Supreme Court and lower federal court opinions, congressional hearings, and scholarly monographs, O'Neill's work will be valuable to historians, academic lawyers, and political scientists.
Author: Donald L. Drakeman
Publisher: Cambridge University Press
Release Date: 2010
This provocative book shows how the justices of the United States Supreme Court have used constitutional history, portraying the Framers' actions in a light favoring their own views about how church and state should be separated. Drakeman examines church-state constitutional controversies from the Founding Era to the present, arguing that the Framers originally intended the establishment clause only as a prohibition against a single national church.
Author: Alexander Somek
Publisher: OUP Oxford
Release Date: 2014-07-31
Originally the constitution was expected to express and channel popular sovereignty. It was the work of freedom, springing from and facilitating collective self-determination. After the Second World War this perspective changed: the modern constitution owes its authority not only to collective authorship, it also must commit itself credibly to human rights. Thus people recede into the background, and the national constitution becomes embedded into one or other system of 'peer review' among nations. This is what Alexander Somek argues is the creation of the cosmopolitan constitution. Reconstructing what he considers to be the three stages in the development of constitutionalism, he argues that the cosmopolitan constitution is not a blueprint for the constitution beyond the nation state, let alone a constitution of the international community; rather, it stands for constitutional law reaching out beyond its national bounds. This cosmopolitan constitution has two faces: the first, political, face reflects the changed circumstances of constitutional authority. It conceives itself as constrained by international human rights protection, firmly committed to combating discrimination on the grounds of nationality, and to embracing strategies for managing its interaction with other sites of authority, such as the United Nations. The second, administrative, face of the cosmopolitan constitution reveals the demise of political authority, which has been traditionally vested in representative bodies. Political processes yield to various, and often informal, strategies of policy co-ordination so long as there are no reasons to fear that the elementary civil rights might be severely interfered with. It represents constitutional authority for an administered world.
Author: Mark Tushnet
Publisher: Oxford University Press
Release Date: 2015-07-31
Genre: Political Science
The Oxford Handbook of the U.S. Constitution offers a comprehensive overview and introduction to the U.S. Constitution from the perspectives of history, political science, law, rights, and constitutional themes, while focusing on its development, structures, rights, and role in the U.S. political system and culture. This Handbook enables readers within and beyond the U.S. to develop a critical comprehension of the literature on the Constitution, along with accessible and up-to-date analysis. The historical essays included in this Handbook cover the Constitution from 1620 right through the Reagan Revolution to the present. Essays on political science detail how contemporary citizens in the United States rely extensively on political parties, interest groups, and bureaucrats to operate a constitution designed to prevent the rise of parties, interest-group politics and an entrenched bureaucracy. The essays on law explore how contemporary citizens appear to expect and accept the exertions of power by a Supreme Court, whose members are increasingly disconnected from the world of practical politics. Essays on rights discuss how contemporary citizens living in a diverse multi-racial society seek guidance on the meaning of liberty and equality, from a Constitution designed for a society in which all politically relevant persons shared the same race, gender, religion and ethnicity. Lastly, the essays on themes explain how in a "globalized" world, people living in the United States can continue to be governed by a constitution originally meant for a society geographically separated from the rest of the "civilized world." Whether a return to the pristine constitutional institutions of the founding or a translation of these constitutional norms in the present is possible remains the central challenge of U.S. constitutionalism today.
Author: Robert W. Bennett
Publisher: Cornell University Press
Release Date: 2011-06-06
Problems of constitutional interpretation have many faces, but much of the contemporary discussion has focused on what has come to be called "originalism." The core of originalism is the belief that fidelity to the original understanding of the Constitution should constrain contemporary judges. As originalist thinking has evolved, it has become clear that there is a family of originalist theories, some emphasizing the intent of the framers, while others focus on the original public meaning of the constitutional text. This idea has enjoyed a modern resurgence, in good part in reaction to the assumption of more sweeping power by the judiciary, operating in the name of constitutional interpretation. Those arguing for a "living Constitution" that keeps up with a changing world and changing values have resisted originalism. This difference in legal philosophy and jurisprudence has, since the 1970s, spilled over into party politics and the partisan wrangling over court appointments from appellate courts to the Supreme Court. In Constitutional Originalism, Robert W. Bennett and Lawrence B. Solum elucidate the two sides of this debate and mediate between them in order to separate differences that are real from those that are only apparent. In a thorough exploration of the range of contemporary views on originalism, the authors articulate and defend sharply contrasting positions. Solum brings learning from the philosophy of language to his argument in favor of originalism, and Bennett highlights interpretational problems in the dispute-resolution context, describing instances in which a living Constitution is a more feasible and productive position. The book explores those contrasting positions, to be sure, but also uncovers important points of agreement for the interpretational enterprise. This provocative and absorbing book ends with a bibliographic essay that points to landmark works in the field and helps lay readers and students orient themselves within the literature of the debate.
Author: James A. Colaiaco
Publisher: St. Martin's Press
Release Date: 2015-03-24
On July 5th, 1852, Frederick Douglass, one of the greatest orators of all time, delivered what was arguably the century's most powerful abolition speech. At a time of year where American freedom is celebrated across the nation, Douglass eloquently summoned the country to resolve the contradiction between slavery and the founding principles of our country. In this book, James A. Colaiaco vividly recreates the turbulent historical context of Douglass' speech and delivers a colorful portrait of the country in the turbulent years leading to the civil war. This book provides a fascinating new perspective on a critical time in American history.
Author: Schwarz O.
Publisher: The New Press
Release Date: 2011-05-10
Genre: Political Science
Thirty years after the Church Committee unearthed COINTELPRO and other instances of illicit executive behavior on the domestic and international fronts, the Bush administration has elevated the flaws identified by the committee into first principles of government. Through a constellation of non-public laws and opaque, unaccountable institutions, the current administration has created a “secret presidency” run by classified presidential decisions and orders about national security. A hyperactive Office of Legal Counsel in the Department of Justice is intent on eliminating checks on presidential power and testing that power’s limits. Decisions are routinely executed at senior levels within the civilian administration without input from Congress or the federal courts, let alone our international allies. Secret NSA spying at home is the most recent of these. Harsh treatment of detainees, “extraordinary renditions,” secret foreign prisons, and the newly minted enemy combatant designation have also undermined our values. The resulting policies have harmed counterterrorism efforts and produced few tangible results. With a partisan Congress predictably reluctant to censure a politically aligned president, it is all the more important for citizens themselves to demand disclosure, oversight, and restraint of sweeping claims of executive power. This book is the first step.