The Constitution in the Courts: Law or Politics?Oxford University Press, 1996 M01 25 - 288 páginas In the modern period of American constitutional law--the period since the U.S. Supreme Court outlawed racially segregated public schooling in Brown v. Board of Education (1954)--there has been a persistent and vigorous debate in the United States about whether the Court has merely been enforcing the Constitution or whether, instead, in the guise of enforcing the Constitution, the Court has really been usurping the legislative prerogative of making political choices about controversial issues. In this book, Professor Perry carefully disentangles and then thoughtfully addresses the various fundamental issues at the heart of the controversy: What is the argument for "judicial review"? What approach to constitutional interpretation should inform the practice of judicial review? How large or small a role should the Court play in bringing the interpreted Constitution to bear in resolving constitutional conflicts? To what extent are the Court's most controversial modern decisions--for example, decisions about racial segregation, discrimination based on sex, abortion, and homosexuality--sound; to what extent are they problematic? The Constitution in the Courts is a major contribution to one of the most fundamental controversies in modern American politics and law. |
Dentro del libro
Resultados 1-5 de 79
Página iv
... — Constitutional law — Interpretation and construction . I. Title . KF4575.P47 1994 342.73'02 — dc20 [ 347.3022 ] 93-18539 1 3 5 7 9 8 642 Printed in the United States of America on acid - free paper For my wife , Sarah Anne O'Leary.
... — Constitutional law — Interpretation and construction . I. Title . KF4575.P47 1994 342.73'02 — dc20 [ 347.3022 ] 93-18539 1 3 5 7 9 8 642 Printed in the United States of America on acid - free paper For my wife , Sarah Anne O'Leary.
Página vii
... America : The Political Seduc- tion of the Law ( 1989 ) , at various points in this book . In January 1990 , when my family and I were beginning a semester's sojourn in New York City , my wife Sarah , not knowing that I had already ...
... America : The Political Seduc- tion of the Law ( 1989 ) , at various points in this book . In January 1990 , when my family and I were beginning a semester's sojourn in New York City , my wife Sarah , not knowing that I had already ...
Página 4
... American constitutional law is a useful and prominent point of departure . The title of Bork's book is The Tempting of America . What is America tempted by ? Bork's answer — suggested by his book's subtitle , The Political Seduction of ...
... American constitutional law is a useful and prominent point of departure . The title of Bork's book is The Tempting of America . What is America tempted by ? Bork's answer — suggested by his book's subtitle , The Political Seduction of ...
Página 5
... American foun- dation . A judge has begun to rule where a legislator should . 7 Bork continues : " The American people are tempted as well . Many of the results seem good , and they are told [ by whom ? ] that the choice is between a ...
... American foun- dation . A judge has begun to rule where a legislator should . 7 Bork continues : " The American people are tempted as well . Many of the results seem good , and they are told [ by whom ? ] that the choice is between a ...
Página 12
... American constitutionalism , 38 which I discuss in chapter 339 ) . Just as there can be and often is disagreement about the con- textual meaning of one or another written constitutional principle , there can be and surely would be ...
... American constitutionalism , 38 which I discuss in chapter 339 ) . Just as there can be and often is disagreement about the con- textual meaning of one or another written constitutional principle , there can be and surely would be ...
Contenido
3 | |
15 | |
3 The Argument for the Originalist Approach to Judicial Review | 28 |
The Indeterminacy of History | 54 |
The Indeterminacy of Morality | 70 |
6 Skepticism about Minimalismand about Nonminimalism Too | 83 |
7 The Original Meaning of the Fourteenth Amendment | 116 |
Equal Protection | 136 |
Substantive Due Process | 161 |
Law and Politics | 192 |
Notes | 205 |
Index | 269 |
Otras ediciones - Ver todas
Términos y frases comunes
abortion according affirmative action American antidiscrimination directive approach to constitutional argument basis Bill of Rights Bork Bork's Chicago L citizens clause was meant conception of proper Congress consti constitutional adjudication constitutional interpretation constitutional provision constitutional text constitutionality context decision directive represented discrimination discriminatory due process clause enacted enforce equal protection clause federal Fourteenth Amendment free exercise clause human immunities clause indeterminate constitutional directives issue judgment judicial minimalism judicial review Justice Justice Brennan legislation liberty McAffee ment minimalist approach moral national government Ninth Amendment nonminimalist normative minimalism ordinary politics original meaning originalist approach originalist judge originally understood particular persons political community political-moral Posner practice of judicial premises principle privileges and immunities privileges or immunities proper judicial role protected privileges question racial ratifiers reasonableness directive relevant Robert Bork rule Scalia sense statute substantive due process Supreme Court Thayer Thayerian tion tional tive tutional violate worse treatment
Pasajes populares
Página 118 - States to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
Página 141 - Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and, generally, to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
Página 118 - That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States...
Página 141 - The liberty mentioned in that amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary...
Página 145 - We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens, — our equals before the law. The thin disguise of "equal" accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.
Página 16 - Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
Página 208 - The fundamental human rights by this Constitution guaranteed to the people of Japan are fruits of the age-old struggle of man to be free; they have survived the many exacting tests for durability and are conferred upon this and future generations in trust, to be held for all time inviolate.
Página 250 - We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
Referencias a este libro
The Federal Impeachment Process: A Constitutional and Historical Analysis Michael J. Gerhardt Vista previa limitada - 2000 |
To Secure These Rights: The Declaration of Independence and Constitutional ... Scott Douglas Gerber Sin vista previa disponible - 1996 |