Constitutional Interpretation

The Basic Questions

Author: Sotirios A. Barber,James E. Fleming

Publisher: Oxford University Press

ISBN: 0199746303

Category: Law

Page: 218

View: 7091

Ronald Dworkin famously argued that fidelity in interpreting the Constitution as written calls for a fusion of constitutional law and moral philosophy. Barber and Fleming take up that call, arguing for a philosophic approach to constitutional interpretation. In doing so, they systematically critique the competing approaches - textualism, consensualism, originalism, structuralism, doctrinalism, minimalism, and pragmatism - that aim and claim to avoid a philosophic approach. Constitutional Interpretation: The Basic Questions illustrates that these approaches cannot avoid philosophic reflection and choice in interpreting the Constitution. Barber and Fleming contend that fidelity in constitutional interpretation requires a fusion of philosophic and other approaches, properly understood. Within such a fusion, interpreters would begin to think of text, consensus, intentions, structures, and doctrines not as alternatives to, but as sites of philosophic reflection about the best understanding of our constitutional commitments. Constitutional Interpretation: The Basic Questions, examines the fundamental inquiries that arise in interpreting constitutional law. In doing so, the authors survey the controversial and intriguing questions that have stirred constitutional debate in the United States for over two centuries, such as: how and for what ends should governmental institutions and powers be arranged; what does the Constitution mean under general circumstances and how should it be interpreted during concrete controversies; and finally how do we decide what our constitution means and who ultimately decides its meaning.
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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: 2260

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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Fidelity to Our Imperfect Constitution

For Moral Readings and Against Originalisms

Author: James E. Fleming

Publisher: Oxford University Press, USA

ISBN: 0199793379

Category: Constitutional law

Page: 256

View: 6367

In recent years, some have asked "Are we all originalists now?" and many have assumed that originalists have a monopoly on concern for fidelity in constitutional interpretation. In Fidelity to Our Imperfect Constitution, James Fleming rejects originalisms-whether old or new, concrete or abstract, living or dead. Instead, he defends what Ronald Dworkin called a "moral reading" of the United States Constitution, or a "philosophic approach" to constitutional interpretation. He refers to conceptions of the Constitution as embodying abstract moral and political principles-not codifying concrete historical rules or practices-and of interpretation of those principles as requiring normative judgments about how they are best understood-not merely historical research to discover relatively specific original meanings. Through examining the spectacular concessions that originalists have made to their critics, he shows the extent to which even they acknowledge the need to make normative judgments in constitutional interpretation. Fleming argues that fidelity in interpreting the Constitution as written requires a moral reading or philosophic approach. Fidelity commits us to honoring our aspirational principles, not following the relatively specific original meanings (or original expected applications) of the founders. Originalists would enshrine an imperfect Constitution that does not deserve our fidelity. Only a moral reading or philosophic approach, which aspires to interpret our imperfect Constitution so as to make it the best it can be, gives us hope of interpreting it in a manner that may deserve our fidelity.
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American Constitutional Law

Essays, Cases, and Comparative Notes

Author: Donald P. Kommers,John E. Finn,Gary J. Jacobsohn

Publisher: Rowman & Littlefield

ISBN: 9780742526884

Category: Political Science

Page: 1095

View: 2805

A course on constitutional law and civil liberties can be and is nothing less than an extended inquiry into the meaning of America. American Constitutional Law: Volume 1 Governmental Powers and Democracy, newly revised by Donald P. Kommers, John E. Finn, and Gary J. Jacobsohn, is a casebook made for such an inquiry. True to the liberal arts tradition from which it emerges, it goes beyond the facts and rulings of the great cases in American constitutional law to engage important issues of political theory and the nature of our constitutional democracy. Although the focus is on American constitutional law, Kommers, Finn, and Jacobsohn break new ground by incorporating comparative materials that enrich the study of the American Constitution by challenging the reader to assess American constitutional values in light of other traditions and understandings of constitutional governance. In an era of constitutional globalization, this new edition of a distinguished text is essential to an appreciation of tradition and diversity.Volume 1 focuses on governmental structures and relationships and includes a new chapter on elections and political representation.
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Interpretation and Legal Theory

Author: Andrei Marmor

Publisher: Bloomsbury Publishing

ISBN: 1847310877

Category: Law

Page: 185

View: 6013

This is a revised and extensively rewritten edition of one of the most influential monographs on legal philosophy published in recent years. Writing in the introduction to the first edition the author characterized Anglophone philosophers as being ..."divided, and often waver[ing] between two main philosophical objectives: the moral evaluation of law and legal institutions, and an account of its actual nature." Questions of methodology have therefore tended to be sidelined, but were bound to surface sooner or later, as they have in the later work of Ronald Dworkin. The main purpose of this book is to provide a critical assessment of Dworkin's methodological turn, away from analytical jurisprudence towards a theory of interpretation, and the issues it gives rise to. The author argues that the importance of Dworkin's interpretative turn is not that it provides a substitute for 'semantic theories of law' (a dubious concept), but that it provides a new conception of jurisprudence, aiming to present itself as a comprehensive rival to the conventionalism manifest in legal positivism. Furthermore, once the interpretative turn is regarded as an overall challenge to conventionalism, it is easier to see why it does not confine itself to a critique of method. Law as interpretation calls into question the main tenets of its positivist rival, in substance as well as method. The book re-examines conventionalism in the light of this interpretative challenge.
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No Establishment of Religion

America's Original Contribution to Religious Liberty

Author: T. Jeremy Gunn,John Witte Jr.

Publisher: Oxford University Press

ISBN: 0199986010

Category: Religion

Page: 432

View: 6983

The First Amendment guarantee that "Congress shall make no law respecting an establishment of religion" rejected the millennium-old Western policy of supporting one form of Christianity in each nation and subjugating all other faiths. The exact meaning and application of this American innovation, however, has always proved elusive. Individual states found it difficult to remove traditional laws that controlled religious doctrine, liturgy, and church life, and that discriminated against unpopular religions. They found it even harder to decide more subtle legal questions that continue to divide Americans today: Did the constitution prohibit governmental support for religion altogether, or just preferential support for some religions over others? Did it require that government remove Sabbath, blasphemy, and oath-taking laws, or could they now be justified on other grounds? Did it mean the removal of religious texts, symbols, and ceremonies from public documents and government lands, or could a democratic government represent these in ever more inclusive ways? These twelve essays stake out strong and sometimes competing positions on what "no establishment of religion" meant to the American founders and to subsequent generations of Americans, and what it might mean today.
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The Rise of Modern Judicial Review

From Constitutional Interpretation to Judge-made Law

Author: Christopher Wolfe

Publisher: Rowman & Littlefield

ISBN: 9780822630265

Category: Law

Page: 447

View: 3251

'A clear, readable and fair account of the development of judicial review.'-Ashley Montagu
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Rights, Emergencies, and Judicial Review

Author: Imtiaz Omar

Publisher: Martinus Nijhoff Publishers

ISBN: 9789041102294

Category: Law

Page: 395

View: 4174

This book makes a significant contribution to the understanding of issues of comparative constitutionalism in emergent politics. Recurrent states of emergency in Malaysia, Sri Lanka and Bangladesh provide the background for a comparative examination of constitutional emergency powers, individual rights, and judicial review. This work examines the extent to which the Court in these countries has performed its expected role, identifies problems in approaches to interpretation which have been adopted, and suggests alternatives to constitutional interpretation and judicial review. The alternatives explored are drawn from contemporary western jurisprudence, including those of Ronald Dworkin and writers of the Critical Legal Studies tradition. The juxtaposition of western jurisprudential development to issues of constitutionalism in the countries under survey is a bold attempt to seek some common ground in conceptualizing rights and techniques of juristic interpretation in western and eastern legal cultures. The theoretical framework of the study is well-perceived, the arguments convincing. This carefully researched work makes a valuable and scholarly contribution to the study of comparative constitutional law and jurisprudence.
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Die Federalist papers

Author: Alexander Hamilton,James Madison,John Jay

Publisher: C.H.Beck

ISBN: 9783406547546

Category: Constitutional history

Page: 583

View: 7707

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Ordered Liberty

Rights, Responsibilities, and Virtues

Author: James E. Fleming,Linda C McClain

Publisher: Harvard University Press

ISBN: 0674067452

Category: Law

Page: 334

View: 3489

Fleming and McClain defend a civic liberalism that takes seriously not just rights but responsibilities and virtues. Issues taken up include same-sex marriage, reproductive freedom, regulation of civil society and the family, education of children, and clashes between First Amendment freedoms of association and religion and antidiscrimination law.
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Federalism and Subsidiarity

NOMOS LV

Author: James E. Fleming,Jacob T Levy

Publisher: NYU Press

ISBN: 1479875554

Category: Law

Page: 464

View: 9702

In Federalism and Subsidiarity, a distinguished interdisciplinary group of scholars in political science, law, and philosophy address the application and interaction of the concept of federalism within law and government. What are the best justifications for and conceptions of federalism? What are the most useful criteria for deciding what powers should be allocated to national governments and what powers reserved to state or provincial governments? What are the implications of the principle of subsidiarity for such questions? What should be the constitutional standing of cities in federations? Do we need to “remap” federalism to reckon with the emergence of translocal and transnational organizations with porous boundaries that are not reflected in traditional jurisdictional conceptions? Examining these questions and more, this latest installation in the NOMOS series sheds new light on the allocation of power within federations.
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The Warren Court

Justices, Rulings, and Legacy

Author: Melvin I. Urofsky

Publisher: ABC-CLIO

ISBN: 157607160X

Category: Biography & Autobiography

Page: 356

View: 2714

Explores the era, justices, key events, and decisions in landmark Supreme Court cases under Chief Justice Earl Warren.
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On Reading the Constitution

Author: Laurence H. TRIBE,Michael C. Dorf,Laurence H Tribe

Publisher: Harvard University Press

ISBN: 0674044452

Category: Political Science

Page: 164

View: 8639

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Religion ohne Gott

Author: Ronald Dworkin

Publisher: Suhrkamp Verlag

ISBN: 3518737325

Category: Philosophy

Page: 146

View: 2364

Das Zentrum wahrer Religiosität, so der bekennende Atheist Albert Einstein, sei die Ehrfurcht vor den Mysterien des Universums, »deren höchste Weisheit und strahlende Schönheit wir mit unseren matten Erkenntnisvermögen nur rudimentär begreifen können«. In diesem Sinne sei er, Einstein, ein tiefreligiöser Mensch. Aber was ist religiös an einer solchen Haltung, in der Gott offensichtlich keine Rolle spielt? Mit dieser Frage beschäftigte sich Ronald Dworkin in seinen Einstein-Vorlesungen, die er bis kurz vor seinem Tod zu diesem Buch ausgearbeitet hat. Religion, so seine Antwort, bezeichnet eine Sicht auf die Welt, die von einem tiefen Glauben an objektive Werte getragen wird – etwa daran, dass Geschöpfe eine Würde haben, dass ein Leben erfüllt oder verfehlt sein kann oder dass Schönheit, die uns den Atem raubt, sich nicht als pures Produkt unserer Sinnesorgane erklären lässt. Auch Theisten teilen diese Werte, meinen aber, sie seien gottgegeben. Für Dworkin verhält es sich genau umgekehrt: Die Idee eines Gottes rührt daher, dass es diese Werte wirklich gibt. Und an Gott (oder Götter) zu glauben ist eine Weise, dies auszudrücken, aber nicht die einzige. Von der Physik über die Politik bis hin zum Recht erkundet »Religion ohne Gott« den Perspektivwechsel, der mit einem solchen gottlosen Verständnis von Religion verbunden ist. Das Buch, das mit einer eindrucksvollen Reflexion über Tod und Unsterblichkeit schließt, ist das Vermächtnis eines bekennenden religiösen Atheisten. Es weitet den Blick für das, was wichtig ist.
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Metaphors of Conciousness

Author: Ronald S. Valle,Rolf von Eckartsberg

Publisher: Springer Science & Business Media

ISBN: 1461338026

Category: Psychology

Page: 544

View: 4848

As we move into the 1980s, there is an increasing awareness that our civilization is going through a profound cultural transformation. At the heart of this transformation lies what is often called a "paradigm shift"-a dramatic change in the thoughts, perceptions, and values which form a particular vision of reality. The paradigm that is now shifting comprises a large number of ideas and values that have dominated our society for several hundred years; values that have been associated with various streams of Western culture, among them the Scientific Revolution of the seventeenth century, The Enlightenment, and the Industrial Revolution. They include the belief in the scientific method as the only valid approach to knowledge, the split between mind and matter, the view of nature as a mechanical system, the view of life in society as a competitive struggle for survival, and the belief in unlimited material progress to be achieved through economic and technological growth. All these ideas and values are now found to be severely limited and in need of radical revision.
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Constitutional Review in Europe

A Comparative Analysis

Author: Maartje de Visser

Publisher: Bloomsbury Publishing

ISBN: 1782252444

Category: Law

Page: 528

View: 5700

Constitutions serve to delineate state powers and enshrine basic rights. Such matters are hardly uncontroversial, but perhaps even more controversial are the questions of who (should) uphold(s) the Constitution and how constitutional review is organised. These two questions are the subject of this book by Maartje de Visser, which offers a comprehensive, comparative analysis of how 11 representative European countries answer these questions, as well as a critical appraisal of the EU legal order in light of these national experiences. Where possible, the book endeavours to identify Europe's common and diverse constitutional traditions of constitutional review. The raison d'Ãatre, jurisdiction and composition of constitutional courts are explored and so too are core features of the constitutional adjudicatory process. Yet, this book also deliberately draws attention to the role of non-judicial actors in upholding the Constitution, as well as the complex interplay amongst constitutional courts and other actors at the national and European level. The Member States featured are: Belgium, the Czech Republic, Finland, France, Germany, Italy, Hungary, the Netherlands, Spain, Poland, and the United Kingdom. This book is intended for practitioners, academics and students with an interest in (European) constitutional law.
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The Constitutional Jurisprudence of the Federal Republic of Germany

Author: Donald P. Kommers

Publisher: Duke University Press

ISBN: 9780822318385

Category: Law

Page: 620

View: 8293

Kommers's comprehensive work surveys the development of German constitutional doctrine between 1949, when the Federal Constitutional Court was founded, and 1996. Extensively revised and expanded to take into account recent developments since German unification, this second edition describes the background, structure, and functions of the Court and provides extensive commentary on German constitutional interpretation, and includes translations of seventy-eight landmark decisions. These cases include the highly controversial religious liberty and free speech cases handed down in 1995.
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Raw Judicial Power?

The Supreme Court and American Society

Author: Robert J. McKeever

Publisher: Manchester University Press

ISBN: 9780719048739

Category: Law

Page: 323

View: 6370

This book presents an analysis of the modern Supreme Court which takes full account of both its legal and political aspects. The book has an empirical bias, and starts with an examination of the political and social forces which brought to prominence the kind of social issues of recent decades. Chapter Two traces the legal and judicial developments that have occurred roughly in parallel to, and sometimes in direct connection with, the rise of the social issue in American politics. Chapters Three to Seven analyze the Court's decisions in the major policy areas affected by these political and judgemental dynamics, namely abortion, capital punishment, affirmative action for racial minorities and women, and other cases including gay rights, pornography and governmental support for religious values. The concluding chapter examines the Court's suitability to continue to carry the political burden that it has acquired.
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Using Legislative History in American Statutory Interpretation

Author: Christian E. Mammen

Publisher: N.A

ISBN: N.A

Category: Law

Page: 199

View: 1869

Using Legislative History in American Statutory Interpretation examines the United States Supreme Court's actual use of legislative history in statutory interpretation, distills the theoretical issues presented by the Court's practices, then analyzes those issues in light of the arguments of several leading theorists. The book separates the utility and usability of legislative history from theories based on legislative intention. Rather than basing an argument for using legislative history on legislative intention, it argues that legislative history conveys a certain degree of expertise and/or provides certain contextual information about the subject matter of the statute. Legislative history may also be authoritative as a matter of judicial precedent; that is, legislative history may be authoritative because judges have said so in published opinions. The book then follows Joseph Raz and argues that the only legislative intentions that may be identified and deemed legally authoritative as a matter of general theory are minimal intentions relating to the enactment of a particular text as a legally authoritative statute within a particular legal system. This approach--justifying the Court's discretionary use of legislative history without reference to legislative intention--accounts for and undermines most of the major objections to using legislative history, such as objections based on the theoretical problems surrounding legislative intentions, objections based on the perceived unconstitutionality of relying on legislative history, and objections based on its frequent inutility.
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