The americanization of Constitutional Law and its paradoxes: Constitutional Theory and Constitutional Jurisdiction in the contemporary world (original) (raw)

American Constitutional Law and History

2012

Preface xv Articles of Confederation xvii The Constitution of the United States xxiii Timeline of Events in American Legal and Political History xxxvii Biographies of Selected Justices of the Supreme Court li Chapter One • The Constitution and Judicial Power 3 A. Background to the Creation of the Constitution 3 B. Judicial Review 6 1. Review of Federal Action 6 A Timeline of Events Leading to Marbury v. Madison 7 Marbury v. Madison 9 2. Judicial Review of State Actions Martin v. Hunter's Lessee C. Modes of Constitutional Interpretation 1. Historical Background Cohens v. Virginia Calder v. Bull 2. Sources of Constitutional Interpretation a. Text b. History c. Structure d. Precedent e. Consensus f. Purposes 3. The Modern Court and Constitutional Interpretation District of Columbia v. Heller D. The Limits of the Judicial Power 1. Justiciability a. Standing

Book Review of The Supreme Court and Constitutional Democracy

1986

The judicial branch is the clear focus of constitutional decisionmaking; national debate regarding abortion, busing, school prayer, and the rights of the criminally accused generally fastens on the Supreme Court's decisions. Concerned that "[t]oday citizens, members of Congress and presidents alike look to the courts for all constitutional deliberation -that is, for all decisions involving the deepest questions of national direction," 1 John Agresto emphasizes the need for the executive and Congress to check the judiciary and to develop constitutional law by interpreting the Constitution independently. Agresta's work, The Supreme Court and Constitutional Democracy, offers a new perspective on the ongoing debate over constitutional interpretation and the role of the Supreme Court in American government.

Liberal politics and the judiciary: The supreme court and american democracy

Res Publica, 1997

In recent years, constitutional government has come to be identified largely with the judicial protection of individual rights. This characterisation of constitutionalism draws inspiration from both standard liberal concerns and the recent practice of the United States Supreme Court. Indeed, there has been a tendency amongst contemporary analytical American legal and political philosophers - most notably John Rawls and Ronald Dworkin and those influenced by, or critical of, their work - to conflate liberalism with the judgments of the Warren and Burger Courts. As a result, the philosophical treatment of a whole range of important social issues, from abortion and pornography, to racial and gender discrimination, has been framed to a remarkable degree by the concerns of American constitutional jurisprudence. Curiously, however, scholars outside America rarely have a direct knowledge of these landmark decisions or the reasoning underlying them. In consequence, a somewhat rarefied understanding of liberal principles and judicial decision making has emerged amongst many social and political philosophers, that rarely engages with the real contexts within which such ideals supposedly operate. It is the great merit of the books under review that in different ways they all seek to explore the actual theory and practice of the Supreme Court. In the process, they are led, albeit to varying extent, to critically examine the philosophical assumptions as well as the workings of the liberal interpretation of the American Constitution and its related view of democracy.

The Legitimacy of the Constitutional Judge and Theories of Interpretation in the United States

The American Journal of Comparative Law, 1994

7. Max Farrand, The Framing of the Constitution of the United States 156-7 (1913); see the participants' notes collected in, Jane Butzner (ed.) Constitutional Chaff 147-152 (1941). 8. For ratification: e.g., The Federalist No. 78, at 464 (Rossiter ed. 1961) (A. Hamilton); against ratification: "Brutus," in Herbert Storing (ed.), 2 The Complete Anti-Federalist 417 ff. (1981); see, e.g., Raoul Berger, Congress v. The Supreme Court 120 ff. (1969). 9. Strongest textual inferences are drawn from Art. III § 2 cl. 1, extending the judicial power of the U.S. to cases "arising under this Constitution", and Art. VI par. 2, the Supremacy Clause, quoted n. 3 above. 10. 5 U.S. (1 Cranch) 137 (1803). 11. This conception of judicial constitutional review as an integral element of the judicial law-finding process, and of the Constitution as supreme ordinary law, drew heavily on the English common law tradition. On the relevance of the common law tradition to the Framers' conception of judicial review see Powell, "The Original Understanding of Original Intent," 98 Harv. L. Rev. 885, 894 ff. (1985). For an argument that Marbury in this sense did indeed effect a major transformation of the earlier understanding, in that it called for routine application of a document originally expected and intended to be enforced only as a last resort against clear violation, see Sylvia Snowiss, Judicial Review and the Law of the Constitution (1990), critically reviewed by Newmyer in 9 Const. Comm. 126 (1992). Marbury is discussed further infra, text at notes 40 if. 12. The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Marbury v. Madison, 5 U.S. at 170.