Constitutional Interpretation

Textual Meaning, Original Intent, and Judicial Review

Author: Keith E. Whittington

Publisher: N.A

ISBN: N.A

Category: Law

Page: 299

View: 1689

Constitutional scholarship has deteriorated into a set of armed camps, with defenders of different theories of judicial review too often talking to their own supporters but not engaging their opponents. This book breaks out of those neat compartments and reinvigorates the debate over how the judiciary should interpret the Constitution. Keith Whittington reconsiders the implications of fundamental legal commitment to faithfully interpret our written Constitution. Making use of arguments drawn from American history, political philosophy, and literary theory, he examines what it means to interpret a written constitution and how the courts should go about that task. He concludes that when interpreting the Constitution, the judiciary should adhere to the discoverable intentions of the Founders. Other "originalists" have also asserted that their approach is required by the Constitution but have neither defended that claim nor effectively responded to critics of their assumptions or their method. This book sympathetically examines the most sophisticated critiques of originalism based on postmodern, hermeneutic, and literary theory, as well as the most common legal arguments against originalists. Whittington explores these criticisms, their potential threat to originalism, and how originalist theory might be reconstructed to address their concerns. In a nondogmatic and readily understandable way, he explains how originalist methods can be reconciled with an appropriate understanding of legal interpretation and why originalism has much to teach constitutional theorists of all stripes, lie also shows how originalism helps realize the democratic promise of the Constitution without relying onassumptions of judicial restraint. This book carefully examines both the possibilities and the limitations of constitutional interpretation and judicial review. It shows us not only what the judiciary ought to do, but what the limits of appropriate judicial review are and how judicial review fits into a larger system of constitutional government. With its detailed and wide-ranging explorations in history, philosophy, and law, this book should be essential reading for anyone interested in how the Constitution ought to be interpreted and what it means to live under a constitutional government.
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Verfassung und Verfassungsgerichtsbarkeit im Vergleich

Author: Werner Heun

Publisher: Mohr Siebeck

ISBN: 9783161535574

Category: Law

Page: 334

View: 3542

Werner Heun bundelt 16 Aufsatze zu Verfassung und Verfassungsgerichtsbarkeit, die sich zu einer problemorientierten systematischen Darstellung der Verfassungsgerichtsbarkeit und ihrer vor allem auch historischen Grundlagen zusammenfugen und haufig einen besonderen Akzent auf die Rechtsvergleichung legen. Das Buch gliedert sich in drei grossere Blocke mit jeweils funf Beitragen. Der erste Block behandelt historische Grundlagen, der zweite Institutionen und Verfahren, der dritte die Verfassungsrechtsprechung und ihre Wirkungen. Die Beitrage sind fruher teilweise an entlegener Stelle erschienen, zwei Beitrage sind uberarbeitete Ubersetzungen aus dem Englischen, zwei sind Originalbeitrage. Die historische und rechtsvergleichende Perspektive ergibt oft auch einen kritischen Blick auf das deutsche Bundesverfassungsgericht, ohne seine aussergewohnliche Stellung im deutschen Verfassungssystem in Frage zu stellen.
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Originalism in American Law and Politics

A Constitutional History

Author: Johnathan O'Neill,Professor Johnathan O'Neill

Publisher: JHU Press

ISBN: 9780801881114

Category: History

Page: 281

View: 6837

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.
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Church, State, and Original Intent

Author: Donald L. Drakeman

Publisher: Cambridge University Press

ISBN: 0521119189

Category: Law

Page: 371

View: 6581

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.
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Judges as Guardians of Constitutionalism and Human Rights

Author: Martin Scheinin,Helle Krunke,Marina Aksenova

Publisher: Edward Elgar Publishing

ISBN: 178536586X

Category: LAW

Page: 400

View: 7473

There are many challenges that national and supranational judges have to face when fulfilling their roles as guardians of constitutionalism and human rights. This book brings together academics and judges from different jurisdictions in an endeavour to uncover the intricacies of the judicial function. The contributors discuss several points that each represent contemporary challenges to judging: analysis of judicial balancing of conflicting considerations; the nature of courts’ legitimacy and its alleged dependence on public support; the role of judges in upholding constitutional values in the times of transition to democracy, surveillance and the fight against terrorism; and the role of international judges in guaranteeing globally recognized fundamental rights and freedoms. This book will be of interest to human rights scholars focusing on the issues of judicial oversight, as well as constitutional law scholars interested in comparative perspectives on the role of judges in different contexts. It will also be useful to national constitutional court judges, and law clerks aiming to familiarise themselves with judicial practices within other jurisdictions.
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Judicial Review and Constitutional Politics

Author: Keith E. Whittington,William Nelson Cromwell Professor of Politics and the Director of Graduate Studies in the Department of Politics Keith E Whittington

Publisher: N.A

ISBN: 9780872292185

Category: Constitutional law

Page: 66

View: 3698

Origins of judicial review in the United States -- Early judicial review -- Slavery and war -- The administrative state and a national economy -- A rights revolution -- Judicial oscillation
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The Cosmopolitan Constitution

Author: Alexander Somek

Publisher: OUP Oxford

ISBN: 0191030929

Category: Law

Page: 320

View: 8084

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.
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Unchecked And Unbalanced

Presidential Power in a Time of Terror

Author: Schwarz O.,Aziz Huq

Publisher: The New Press

ISBN: 1595587454

Category: Political Science

Page: 288

View: 9318

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.
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Same-Sex Marriage and the Constitution

Author: Evan Gerstmann

Publisher: Cambridge University Press

ISBN: 9780521009522

Category: Law

Page: 222

View: 7350

Same Sex Marriage and the Constitution argues that same-sex marriage is an important constitutional issue facing society.
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Frederick Douglass and the Fourth of July

Author: James A. Colaiaco

Publisher: St. Martin's Press

ISBN: 1466892781

Category: History

Page: 256

View: 9767

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.
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Thomas Jefferson and Executive Power

Author: Jeremy D. Bailey

Publisher: Cambridge University Press

ISBN: 1139466291

Category: Political Science

Page: N.A

View: 786

By revisiting Thomas Jefferson's understanding of executive power this book offers a new understanding of the origins of presidential power. Before Jefferson was elected president, he arrived at a way to resolve the tension between constitutionalism and executive power. Because his solution would preserve a strict interpretation of the Constitution as well as transform the precedents left by his Federalist predecessors, it provided an alternative to Alexander Hamilton's understanding of executive power. In fact, a more thorough account of Jefferson's political career suggests that Jefferson envisioned an executive that was powerful, or 'energetic', because it would be more explicitly attached to the majority will. Jefferson's Revolution of 1800, often portrayed as a reversal of the strong presidency, was itself premised on energy in the executive and was part of Jefferson's project to enable the Constitution to survive and even flourish in a world governed by necessity.
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Symposium

original ideas on originalism

Author: Northwestern University (Evanston, Ill.). School of Law

Publisher: N.A

ISBN: N.A

Category: Law

Page: 606

View: 6643

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Hans-Georg Gadamer: Wahrheit und Methode

Author: Günter Figal

Publisher: Walter de Gruyter

ISBN: 3050056983

Category: Philosophy

Page: 233

View: 7953

In seinem 1960 erschienenen Hauptwerk "Wahrheit und Methode" nimmt Gadamer die bis in die Antike zurückreichende hermeneutische Tradition auf, um vor allem im Anschluss an Hegel und Heidegger eine philosophische Hermeneutik zu begründen. Das Buch brachte seinem Autor internationalen Ruhm, und die philosophische Hermeneutik ist eine der maßgeblichen Konzeptionen der neueren Philosophie geworden. Nach wie vor bildet "Wahrheit und Methode" den Ausgangspunkt für eine philosophische Klärung des Verstehens und seiner von Gadamer behandelten Ausprägungen in Kunst, Geschichte und Sprache. Der vorliegende Band rekonstruiert und diskutiert in Form eines kooperativen Kommentars, der Gliederung des Werkes folgend, Gadamers Gedankengang, zeigt aber auch die Perspektiven einer Philosophie auf, die sich gegenüber ihrem eigenen hermeneutischen Charakter nicht verschließt.
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American constitutional interpretation

Author: Walter F. Murphy,James E. Fleming,Sotirios A. Barber

Publisher: Foundation Pr

ISBN: N.A

Category: Law

Page: 1749

View: 8226

This undergaduate text uses original essays, cases and materials to study the very enterprise by which a constitution is interpreted and a constitutional government created. It explores the American polity as both a constitutional and democratic entity. This volume is organized around a set of basic interrogatives: What is the constitution that is to be interpreted? Who are its authoritative interpreters? How do they go about their interpretive tasks?
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Contemporary Authors

Author: Gale Group

Publisher: Gale Cengage

ISBN: 9780787645953

Category: Biography & Autobiography

Page: 471

View: 3971

Your students and users will find biographical information on approximately 300 modern writers in this volume of Contemporary Authors(r) .
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The Challenge of Originalism

Theories of Constitutional Interpretation

Author: Grant Huscroft,Bradley W. Miller

Publisher: Cambridge University Press

ISBN: 1139505130

Category: Law

Page: N.A

View: 1099

Originalism is a force to be reckoned with in constitutional interpretation. At one time a monolithic theory of constitutional interpretation, contemporary originalism has developed into a sophisticated family of theories about how to interpret and reason with a constitution. Contemporary originalists harness the resources of linguistic, moral, and political philosophy to propose methodologies for the interpretation of constitutional texts and provide reasons for fidelity to those texts. The essays in this volume, which includes contributions from the flag bearers of several competing schools of constitutional interpretation, provides an introduction to the development of originalist thought, showcases the great range of contemporary originalist constitutional scholarship, and situates competing schools of thought in dialogue with each other. They also make new contributions to the methodological and normative disputes between originalists and non-originalists, and among originalists themselves.
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Rehnquist justice

understanding the court dynamic

Author: Earl M. Maltz

Publisher: Univ Pr of Kansas

ISBN: N.A

Category: Law

Page: 312

View: 464

With seven of its justices appointed by Republican presidents, today's Supreme Court has significantly altered America's legal landscape since 1986 by tilting constitutional jurisprudence to the right. That was the goal of Presidents Reagan and Bush in filling court vacancies and has been felt in cases related to federalism, economic rights, and affirmative action. However, liberal issues such as abortion have moved only marginally to the right, while rulings by the Court on school prayer and gay rights have moved constitutional doctrine slightly to the left. Here prominent constitutional scholars are joined by new voices from the cutting edge of academia to show that the Rehnquist Court's conservatism is less extreme than many have supposed. Reflecting views across the political spectrum, the contributors help readers understand the Court dynamic, its constrained conservatism, and the forces that shape constitutional law in general. As these authors show, the overall pattern of decision-making in the Rehnquist era cannot be attributed to any single, unified approach to constitutional analysis. Instead, it can only be understood as the product of a complex interaction among individual justices, each with an idiosyncratic view of the proper interpretation of the Constitution and the role of the Court in the American political system. These essays provide insight into this interaction by focusing on each member of the bench. From the staunch conservatism of Clarence Thomas, to the "accommodationism" of Sandra Day O'Connor, to the "liberal constitutionalism" of David Souter, the essays analyze the unique approach of each justice to interpreting the Constitution. They also show that thecurrent justices are the product of a nomination and confirmation process that has undergone a major transformation--one which now favors experienced, often unknown jurists over high-profile public servants. By concentrating at
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