The Doctrine Of Judicial Supremacy
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Author | : Larry Kramer |
Publisher | : Oxford University Press, USA |
Total Pages | : 380 |
Release | : 2004 |
Genre | : History |
ISBN | : 9780195306453 |
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.
Author | : Keith E. Whittington |
Publisher | : Princeton University Press |
Total Pages | : 320 |
Release | : 2009-03-09 |
Genre | : Law |
ISBN | : 1400827752 |
Should the Supreme Court have the last word when it comes to interpreting the Constitution? The justices on the Supreme Court certainly seem to think so--and their critics say that this position threatens democracy. But Keith Whittington argues that the Court's justices have not simply seized power and circumvented politics. The justices have had power thrust upon them--by politicians, for the benefit of politicians. In this sweeping political history of judicial supremacy in America, Whittington shows that presidents and political leaders of all stripes have worked to put the Court on a pedestal and have encouraged its justices to accept the role of ultimate interpreters of the Constitution. Whittington examines why presidents have often found judicial supremacy to be in their best interest, why they have rarely assumed responsibility for interpreting the Constitution, and why constitutional leadership has often been passed to the courts. The unprecedented assertiveness of the Rehnquist Court in striking down acts of Congress is only the most recent example of a development that began with the founding generation itself. Presidential bids for constitutional leadership have been rare, but reflect the temporary political advantage in doing so. Far more often, presidents have cooperated in increasing the Court's power and encouraging its activism. Challenging the conventional wisdom that judges have usurped democracy, Whittington shows that judicial supremacy is the product of democratic politics.
Author | : John Agresto |
Publisher | : Cornell University Press |
Total Pages | : 184 |
Release | : 2016-10-15 |
Genre | : Law |
ISBN | : 1501712918 |
In The Supreme Court and Constitutional Democracy John Agresto traces the development of American judicial power, paying close attention to what he views as the very real threat of judicial supremacy. Agresto examines the role of the judiciary in a democratic society and discusses the proper place of congressional power in constitutional issues. Agresto argues that while the separation of congressional and judicial functions is a fundamental tenet of American government, the present system is not effective in maintaining an appropriate balance of power. He shows that continued judicial expansion, especially into the realm of public policy, might have severe consequences for America's national life and direction, and offers practical recommendations for safeguarding against an increasingly powerful Supreme Court. John Agresto's controversial argument, set in the context of a historical and theoretical inquiry, will be of great interest to scholars and students in political science and law, especially American constitutional law and political theory.
Author | : Stephen Breyer |
Publisher | : Harvard University Press |
Total Pages | : 113 |
Release | : 2021-09-14 |
Genre | : Law |
ISBN | : 0674269365 |
A sitting justice reflects upon the authority of the Supreme CourtÑhow that authority was gained and how measures to restructure the Court could undermine both the Court and the constitutional system of checks and balances that depends on it. A growing chorus of officials and commentators argues that the Supreme Court has become too political. On this view the confirmation process is just an exercise in partisan agenda-setting, and the jurists are no more than Òpoliticians in robesÓÑtheir ostensibly neutral judicial philosophies mere camouflage for conservative or liberal convictions. Stephen Breyer, drawing upon his experience as a Supreme Court justice, sounds a cautionary note. Mindful of the CourtÕs history, he suggests that the judiciaryÕs hard-won authority could be marred by reforms premised on the assumption of ideological bias. Having, as Hamilton observed, Òno influence over either the sword or the purse,Ó the Court earned its authority by making decisions that have, over time, increased the publicÕs trust. If public trust is now in decline, one part of the solution is to promote better understandings of how the judiciary actually works: how judges adhere to their oaths and how they try to avoid considerations of politics and popularity. Breyer warns that political intervention could itself further erode public trust. Without the publicÕs trust, the Court would no longer be able to act as a check on the other branches of government or as a guarantor of the rule of law, risking serious harm to our constitutional system.
Author | : Edward Samuel Corwin |
Publisher | : Archon Books |
Total Pages | : 278 |
Release | : 1934 |
Genre | : Law |
ISBN | : |
"Delivered as the Storrs lectures, Yale University, 1934.
Author | : Edward S. Corwin |
Publisher | : Cornell University Press |
Total Pages | : 408 |
Release | : 2019-06-30 |
Genre | : Political Science |
ISBN | : 1501741713 |
Edward S. Corwin (1878–1963), universally acknowledged to be the most important commentator on the U.S. Constitution in the twentieth century, died before he could write the single definitive work he had planned. Richard Loss has devoted himself to the task of editing a three-volume collection (of which this is the second) of Corwin's major essays on the Constitution. The seventeen essays in Volume II focus on Article III (the judicial article) of the Constitution. They were, in Corwin's judgment, among his most important works. Thus this volume is a sequel both to Volume I, which treated Articles I and II of the Constitution, and to Presidential Power and the Constitution, in which Loss gathered most of Corwin's essays on the presidency. The editor has organized the essays under the headings "The Origins of Judicial Review," "The Development of Judicial Supremacy," "The Exercise of Judicial Review," and "Appraisals of Judicial Review." Each essay is reprinted in its entirety, including footnotes.
Author | : Stephen Gardbaum |
Publisher | : Cambridge University Press |
Total Pages | : 275 |
Release | : 2013-01-03 |
Genre | : Law |
ISBN | : 1107009286 |
Stephen Gardbaum proposes and examines a new way of protecting rights in a democracy.
Author | : Robert A. Burt |
Publisher | : Harvard University Press |
Total Pages | : 492 |
Release | : 1992 |
Genre | : Law |
ISBN | : 9780674165366 |
In a remarkably innovative reconstruction of constitutional history, Robert Burt traces the controversy over judicial supremacy back to the founding fathers. Also drawing extensively on Lincoln's conception of political equality, Burt argues convincingly that judicial supremacy and majority rule are both inconsistent with the egalitarian democratic ideal. The first fully articulated presentation of the Constitution as a communally interpreted document in which the Supreme Court plays an important but not predominant role, The Constitution in Conflict has dramatic implications for both the theory and the practice of constitutional law.
Author | : Mark Tushnet |
Publisher | : Princeton University Press |
Total Pages | : 288 |
Release | : 2009-07-20 |
Genre | : Political Science |
ISBN | : 1400828155 |
Unlike many other countries, the United States has few constitutional guarantees of social welfare rights such as income, housing, or healthcare. In part this is because many Americans believe that the courts cannot possibly enforce such guarantees. However, recent innovations in constitutional design in other countries suggest that such rights can be judicially enforced--not by increasing the power of the courts but by decreasing it. In Weak Courts, Strong Rights, Mark Tushnet uses a comparative legal perspective to show how creating weaker forms of judicial review may actually allow for stronger social welfare rights under American constitutional law. Under "strong-form" judicial review, as in the United States, judicial interpretations of the constitution are binding on other branches of government. In contrast, "weak-form" review allows the legislature and executive to reject constitutional rulings by the judiciary--as long as they do so publicly. Tushnet describes how weak-form review works in Great Britain and Canada and discusses the extent to which legislatures can be expected to enforce constitutional norms on their own. With that background, he turns to social welfare rights, explaining the connection between the "state action" or "horizontal effect" doctrine and the enforcement of social welfare rights. Tushnet then draws together the analysis of weak-form review and that of social welfare rights, explaining how weak-form review could be used to enforce those rights. He demonstrates that there is a clear judicial path--not an insurmountable judicial hurdle--to better enforcement of constitutional social welfare rights.
Author | : Aleksander Peczenik |
Publisher | : Springer Science & Business Media |
Total Pages | : 455 |
Release | : 2014-01-12 |
Genre | : Law |
ISBN | : 1402083815 |
'This is an outline of a coherence theory of law. Its basic ideas are: reasonable support and weighing of reasons. All the rest is commentary.’ These words at the beginning of the preface of this book perfectly indicate what On Law and Reason is about. It is a theory about the nature of the law which emphasises the role of reason in the law and which refuses to limit the role of reason to the application of deductive logic. In 1989, when the first edition of On Law and Reason appeared, this book was ground breaking for several reasons. It provided a rationalistic theory of the law in the language of analytic philosophy and based on a thorough understanding of the results, including technical ones, of analytic philosophy. That was not an obvious combination at the time of the book’s first appearance and still is not. The result is an analytical rigor that is usually associated with positivist theories of the law, combined with a philosophical position that is not natural law in a strict sense, but which shares with it the emphasis on the role of reason in determining what the law is. If only for this rare combination, On Law and Reason still deserves careful study. On Law and Reason also foreshadowed and influenced a development in the field of Legal Logic that would take place in the nineties of the 20th century, namely the development of non-monotonic (‘defeasible’) logics for the analysis of legal reasoning. In the new Introduction to this second edition, this aspect is explored in some more detail.