Download or read book Shaping Constitutional Values written by Neal Devins and published by . This book was released on 1996 with total page 216 pages. Available in PDF, EPUB and Kindle. Book excerpt: In the more than twenty years since Roe v. Wade, the executive and legislative branches of government have pursued a staggering number of initiatives relating to abortion. In this groundbreaking study, legal scholar Neal Devins shows how the Supreme Court, elected government, and private citizens together help to shape what the Constitution means. Central to his study is the question of how the Court and elected government influence each other. In addition to the abortion debate, Devins examines conflicts over federalism, race, religion, and separation of powers. These constitutional disputes, Devins contends, can be as constructive as they are inevitable. Without an ongoing dynamic that allows each side to win some of the time, Devins concludes, the Constitution would be less enduring.

Download or read book The Democratic Constitution written by Neal Devins and published by . This book was released on 2023 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: In this fascinating debunking of judicial supremacy, Devins and Fisher argue that nonjudicial contributions to constitutional interpretation make the Constitution more stable, more consistent with constitutional principles, and more protective of individual and minority rights. This highly readable narrative of how the Court and elected officials work in concert with the American people to shape constitutional values is an impressive affirmation of public participation in the political process.

Download or read book Extending Rights Reach written by Jud Mathews and published by Oxford University Press. This book was released on 2018-03-13 with total page 265 pages. Available in PDF, EPUB and Kindle. Book excerpt: Constitutional rights protect individuals against government overreaching, but that is not all they do. In different ways and to different degrees, constitutional rights also regulate legal relations among private parties in most legal systems. Rights can have not only a vertical effect, within the hierarchical relationship between citizen and state, but also a horizontal one, on the citizen-to-citizen relationships otherwise governed by private law. In every constitutional system with judicially enforceable constitutional rights, courts must make choices about whether, when, and how to give those rights horizontal effect. This book is about how different courts make those choices, and about the consequences that they have. The doctrines that courts build to manage the horizontal effect of rights speak to the most fundamental issues that constitutional systems address, about the nature of rights and of constitutionalism itself. These doctrines can also entrench or enhance judicial power, but in very different ways depending on the legal system. This book offers three case studies, of Germany, the United States, and Canada. For each, it offers a detailed account of the horizontal effect jurisprudence of its apex court-not in isolation, but as a central feature of a broader account of that country's constitutional development. The case studies show how the choices courts make about horizontal rights reflect existing normative and political realities and, over time, help to shape new ones.

Download or read book An Entrenched Legacy written by Patrick M. Garry and published by Penn State Press. This book was released on 2010-11 with total page 202 pages. Available in PDF, EPUB and Kindle. Book excerpt: An Entrenched Legacy takes a fresh look at the role of the Supreme Court in our modern constitutional system. Although criticisms of judicial power today often attribute its rise to the activism of justices seeking to advance particular political ideologies, Patrick Garry argues instead that the Supreme Court&’s power has grown mainly because of certain constitutional decisions during the New Deal era that initially seemed to portend a lessening of the Court&’s power. When the Court retreated from enforcing separation of powers and federalism as the twin structural protections for individual liberty in the face of FDR&’s New Deal agenda, it was inevitably drawn into an alternative approach, substantive due process, as a means for protecting individual rights. This has led to many controversial judicial rulings, particularly regarding the recognition and enforcement of privacy rights. It has also led to the mistaken belief that the judiciary serves as the only protection of liberty and that an inherent conflict exists between individual liberty and majoritarian rule. Moreover, because the Court has assumed sole responsibility for preserving liberty, the whole area of individual rights has become highly centralized. As Garry argues, individual rights have been placed exclusively under judicial jurisdiction not because of anything the Constitution commands, but because of the constitutional compromise of the New Deal. During the Rehnquist era, the Court tried to reinvigorate the constitutional doctrine of federalism by strengthening certain powers of the states. But, according to Garry, this effort only went halfway toward a true revival of federalism, since the Court continued to rely on judicially enforced individual rights for the protection of liberty. A more comprehensive reform would require a return to the earlier reliance on both federalism and separation of powers as structural devices for protecting liberty. Such reform, as Garry notes, would also help revitalize the role of legislatures in our democratic system.

Download or read book Neglected Stories written by Peggy Cooper Davis and published by Macmillan. This book was released on 1998-04-30 with total page 310 pages. Available in PDF, EPUB and Kindle. Book excerpt: In a powerful challenge to the belief that the Constitution has nothing to do with the individual freedoms that comprise family rights, Peggy Cooper Davis argues in Neglected Stories that the constitutional amendments after the Civil War reflect a profound appreciation of the political, social, and personal worth of family autonomy. She draws upon what she calls the "motivating stories" of the Fourteenth Amendment to show that the Reconstruction legislators who sponsored it understood family rights as aspects of liberty that were fundamental to the proper definition of freedom and citizenship. This new understanding of family rights developed as men and women - black and white, Southerners and Northerners - came to appreciate the enormity of slavery's denial, even destruction, of family life. Davis also explores the "doctrinal stories" the Supreme Court has told to justify or strike down restrictions on liberty with respect to work, marriage, procreation, parenting, and sexuality and family planning - and the stories of the litigants who wanted to live, work, marry, love, and parent as they chose. These "neglected stories" are woven together in a strong new constitutional argument that gives us at long last a framework in which we can have sensible social and political debate about just what we mean when we say "family values."

Download or read book Constitutional Values written by Daniel E. Hall and published by Prentice Hall. This book was released on 2009 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: Constitutional Values: Governmental Power and Individual Freedoms in American Politicsis a single volume that examines both constitutional law and civil liberties using narrative, well-edited cases, and real-world interpretations. It introduces readers to the underlying political structure of the American judiciary, explores the constitutional foundations for governmental authority, and reviews the legal protections for individual rights and liberties in the American political system. Chapter questions are included to provoke readers' analytical and critical thinking skills, and over 100 cases help readers understand how constitutional doctrines are applied. Presents a sound discussion of governmental structure and authority in the first part of the book. Follows with a clear presentation of civil liberties and civil rights in the second part of the book. Contains over 100 edited cases which are referenced in Part Two of the book. Includes important U.S. Supreme Court opinions regarding governmental authority and individual freedoms. Covers standard Supreme Court cases and also incorporates contemporary constitutional controversies. Discusses unique local cases which demonstrate the local implications of constitutional politics. Includes cases from Maryland, New York, Connecticut, California, Ohio, Minnesota, Iowa, Rhode Island, Alabama, Virginia and more! Provides true insights into the day-to-day realities of constitutional law. Encourages readers to apply constitutional doctrines to local controversies.Anyone interested in or involved with constitutional law and civil liberties.

Download or read book Keeping Faith with the Constitution written by Goodwin Liu and published by Oxford University Press. This book was released on 2010-08-05 with total page 274 pages. Available in PDF, EPUB and Kindle. Book excerpt: Chief Justice John Marshall argued that a constitution "requires that only its great outlines should be marked [and] its important objects designated." Ours is "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." In recent years, Marshall's great truths have been challenged by proponents of originalism and strict construction. Such legal thinkers as Supreme Court Justice Antonin Scalia argue that the Constitution must be construed and applied as it was when the Framers wrote it. In Keeping Faith with the Constitution, three legal authorities make the case for Marshall's vision. They describe their approach as "constitutional fidelity"--not to how the Framers would have applied the Constitution, but to the text and principles of the Constitution itself. The original understanding of the text is one source of interpretation, but not the only one; to preserve the meaning and authority of the document, to keep it vital, applications of the Constitution must be shaped by precedent, historical experience, practical consequence, and societal change. The authors range across the history of constitutional interpretation to show how this approach has been the source of our greatest advances, from Brown v. Board of Education to the New Deal, from the Miranda decision to the expansion of women's rights. They delve into the complexities of voting rights, the malapportionment of legislative districts, speech freedoms, civil liberties and the War on Terror, and the evolution of checks and balances. The Constitution's framers could never have imagined DNA, global warming, or even women's equality. Yet these and many more realities shape our lives and outlook. Our Constitution will remain vital into our changing future, the authors write, if judges remain true to this rich tradition of adaptation and fidelity.

Download or read book Public Values in Constitutional Law written by Stephen E. Gottlieb and published by . This book was released on 1993 with total page 304 pages. Available in PDF, EPUB and Kindle. Book excerpt: Critical examination of the concept of compelling government interests

Download or read book The Supreme Court and Constitutional Democracy written by John Agresto and published by Cornell University Press. This book was released on 1984 with total page 188 pages. Available in PDF, EPUB and Kindle. Book excerpt: Discusses the growth of the power of the Supreme Court and analyzes the separation of judicial and congressional functions.

Download or read book The Shape of Citizenship written by David N. McNeill and published by . This book was released on 2023 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: The United States, it is widely believed, is at a moment of constitutional crisis. At no time since the Civil War era has it seemed more likely that what James Madison called the “experiment entrusted to the hands of the American people”--the experiment in democratic constitutional self-governance--will fail. This article argues that one reason for this state of affairs is that the 'people' sense that they are no longer active participants in the experiment. While the historical etiology of this crisis is complex, and the forces involved not confined to the US, this article focuses on the crisis in the legitimacy of the Federal Judiciary--and the role that current orthodoxies in constitutional interpretation have played in fomenting that crisis.The immediate critical target of this article is contemporary jurisprudential uses of what is called “public meaning originalism,” specifically, and 'textualist originalism' more broadly, as a theory for the interpretation of those clauses in the US Constitution that refer to fundamental rights and freedoms. This concern with “textualism,” however, is primarily diagnostic. For, despite its relative unpopularity among most contemporary legal theorists, the application of “public meaning originalism” by the US Supreme Court is perfectly consistent with the dominant legal theoretical approach in the English-speaking world. The extremity of the Court's recent 'textualist' jurisprudence provides an excellent illustration, or reminder, of the dangers of legal positivist jurisprudence. In arguing against textualist originalism, this article defends a version of the anti-positivist distinction between legal rules and legal principles, most famously associated with the work of Ronald Dworkin. It argues, however, that this distinction cannot be captured by understanding constitutional principles in terms of moral principles, as Dworkin suggests. Instead, constitutional principles must be understood as deliberative principles of political association and communal self-determination. The primary subject of this article, then, is the character of fundamental constitutional law; our hope is that the current crises in democratic constitutional legitimacy can help make salient certain aspects of the relation between popular sovereignty and constitutional legitimacy that are harder to discern in less fractured political climates.This article begins, in Part One, with a consideration of the Roberts Court's recent jurisprudence, focusing on three landmark opinions issued in June of 2022: Dobbs v Jackson Women's Health Organization, Kennedy v. Bremerton School Dist. and West Virginia v EPA. The point of revisiting this recent history will not be--or will not only be--to decry these rulings as anti-democratic and constitutionally ill-founded. The point, rather, will be 1) to see these rulings as consolidations of the Court's newly asserted constitutional authority, and 2) show how contemporary positivist constitutional theory has helped prepare the way for the Court's manipulation of the constitutional order.Part Two begins to elaborate an anti-positivist alternative both to legal positivism and to natural law legal theory. In agreement with traditional natural law theorists, it is argued that the distinction between illegitimate and legitimate expressions of political authority depends on the degree to which a system of authority is directed toward a common good. In disagreement with those theorists, however, this article contends that the common good of a political community is determined by the communal deliberative activity of a political community, and that the deliberative determination of a common good is the normative foundation of that community.Part Three focuses on the First Amendment of the US Constitution with two aims in mind. First, to illustrate the account of constitutional law here advocated, it offers a reading of the First Amendment as an attempt to put into words a shared understanding among the ratifiers of the Bill of Rights of what this article calls 'the shape of citizenship' in our constitutional democracy. Second, it shows how the Court's recent opinions have radically subverted the last vestiges of this original connection between constitutional rights and the foundational principles of constitutional self-government. In Dobbs v Jackson, in particular, the Court asserts an understanding of constitutional rights as merely a particular structural variant of positive law, and in so doing effectively makes the legal order a sovereign power over the people, rather than an expression of and vehicle for their common self-determination.

Download or read book A Practical Guide to Constitution Building written by Winluck Wahiu and published by . This book was released on 2011 with total page pages. Available in PDF, EPUB and Kindle. Book excerpt: "A Practical Guide to Constitution Building provides an essential foundation for understanding constitutions and constitution building. Full of world examples of ground-breaking agreements and innovative provisions adopted during processes of constitutional change, the Guide offers a wide range of examples of how constitutions develop and how their development can establish and entrench democratic values. Beyond comparative examples, the Guide contains in-depth analysis of key components of constitutions and the forces of change that shape them. The Guide analyzes the adoption of the substantive elements of a new constitution by looking at forces for the aggregation or dissemination of governmental power, and forces for greater legalization or politicization of governmental power, and examining how these forces influence the content of the constitution. It urges practitioners to look carefully at the forces at play within their individual contexts in order to better understand constitutional dynamics and play a role in shaping a constitution that will put into place a functioning democratic government and foster lasting peace."--

Download or read book Encounters with Constitutional Interpretation and Legal Education written by James Stellios and published by . This book was released on 2018-02-19 with total page 240 pages. Available in PDF, EPUB and Kindle. Book excerpt: What do constitutional interpretation and legal education have in common?For one thing, they share the same tension between theory and practice, between form and substance, between process and outcomes, between constancy and change, and between local and comparative perspectives. Each also has a substratum of fundamental underlying values that demand, but do not always receive, clear articulation.For another thing, they have both been the subject of illuminating examination by Michael Coper over the course of a long and distinguished career.An extraordinary group of authors, including Justice Stephen Gageler, the Hon Michael Kirby and Sir Anthony Mason, come together in this book to celebrate Coper's achievement, and take his various contributions as a jumping off point for their own further scholarly insights.From the gripping story of the revolution that swept away the old law on section 92 of the Constitution, to the endemic conflict in the judicial process between legalism and realism, to the never-ending controversy about the Dismissal, to perceiving the world and organising legal knowledge in new ways through biography and oral history, to the role of educators in shaping the views and values of newcomers to this knowledge, this book contains over a dozen sparkling essays by some of Australia's most renowned and respected lawyers, as well as a substantial reflective commentary by Michael Coper himself.An intellectual feast!

Download or read book Norms Interests and Values written by Henning Glaser and published by Nomos Verlagsgesellschaft. This book was released on 2015 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: All constitutional regimes necessarily rely on a certain underlying consensus (Robert Dahl). They all, however, include conflicts and mechanisms to cope with them. This ambiguity applies in particular to the normative fundament of the political system, the constitutional basic order. If the balance between conflict and consent and its reproduction by relevant stakeholders and constitutional institutions including the judicial adjustment of the constitutional text by interpretation is disturbed here, or the constitutional basic order itself is threateningly assailed, constitutional crisis will emerge. Thus, experiences of constitutional crisis, but also processes of constitution making and constitutional reform, mark those dimensions in which consent and conflict in the constitutional basic order are reflected most clearly and fundamentally. The volume collects contributions dealing with constitutional regimes which are currently facing critical challenges of the underlying consent of the constitutional community (Belgium, Hungary, Italy, Malaysia, Taiwan, Turkey), with strategies of the constitutional order to cope with those challenges (Germany, Singapore), and with claimed cultural differences concerning the Western form to shape the constitutional basic order ("Asian Values" and constitution).

Download or read book The People Themselves written by Larry Kramer and published by Oxford University Press, USA. This book was released on 2004 with total page 380 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book makes the radical claim that rather than interpreting the Constitution from on high, the Court should be reflecting popular will--or the wishes of the people themselves.

Download or read book Ruling the World written by Jeffrey L. Dunoff and published by Cambridge University Press. This book was released on 2009-07-20 with total page 432 pages. Available in PDF, EPUB and Kindle. Book excerpt: Ruling the World?: Constitutionalism, International Law, and Global Governance provides an interdisciplinary analysis of the major developments and central questions in debates over international constitutionalism at the UN, EU, WTO, and other sites of global governance. The essays in this volume explore controversial empirical and structural questions, doctrinal and normative issues, and questions of institutional design and positive political theory. Ruling the World? grows out of a three-year research project that brought twelve leading scholars together to create a comprehensive and integrated framework for understanding global constitutionalization. Ruling the World? is the first volume to explore in a cross-cutting way constitutional discourse across international regimes, constitutional pluralism, and relations among transnational and domestic constitutions. The volume examines the core assumptions, basic analytic tools, and key challenges in contemporary debates over international constitutionalization.

Download or read book Social and Political Foundations of Constitutions written by Denis J. Galligan and published by Cambridge University Press. This book was released on 2013-10-14 with total page 693 pages. Available in PDF, EPUB and Kindle. Book excerpt: This volume analyses the social and political forces that influence constitutions and the process of constitution making. It combines theoretical perspectives on the social and political foundations of constitutions with a range of detailed case studies from nineteen countries. In the first part leading scholars analyse and develop a range of theoretical perspectives, including constitutions as coordination devices, mission statements, contracts, products of domestic power play, transnational documents, and as reflection of the will of the people. In the second part these theories are examined through in-depth case studies of the social and political foundations of constitutions in countries such as Egypt, Nigeria, Japan, Romania, Bulgaria, New Zealand, Israel, Argentina and others. The result is a multidimensional study of constitutions as social phenomena and their interaction with other social phenomena.

Download or read book The Living Constitution written by David A. Strauss and published by Oxford University Press. This book was released on 2010-05-19 with total page 171 pages. Available in PDF, EPUB and Kindle. Book excerpt: Supreme Court Justice Antonin Scalia once remarked that the theory of an evolving, "living" Constitution effectively "rendered the Constitution useless." He wanted a "dead Constitution," he joked, arguing it must be interpreted as the framers originally understood it. In The Living Constitution, leading constitutional scholar David Strauss forcefully argues against the claims of Scalia, Clarence Thomas, Robert Bork, and other "originalists," explaining in clear, jargon-free English how the Constitution can sensibly evolve, without falling into the anything-goes flexibility caricatured by opponents. The living Constitution is not an out-of-touch liberal theory, Strauss further shows, but a mainstream tradition of American jurisprudence--a common-law approach to the Constitution, rooted in the written document but also based on precedent. Each generation has contributed precedents that guide and confine judicial rulings, yet allow us to meet the demands of today, not force us to follow the commands of the long-dead Founders. Strauss explores how judicial decisions adapted the Constitution's text (and contradicted original intent) to produce some of our most profound accomplishments: the end of racial segregation, the expansion of women's rights, and the freedom of speech. By contrast, originalism suffers from fatal flaws: the impossibility of truly divining original intent, the difficulty of adapting eighteenth-century understandings to the modern world, and the pointlessness of chaining ourselves to decisions made centuries ago. David Strauss is one of our leading authorities on Constitutional law--one with practical knowledge as well, having served as Assistant Solicitor General of the United States and argued eighteen cases before the United States Supreme Court. Now he offers a profound new understanding of how the Constitution can remain vital to life in the twenty-first century.