In a few thousand words the Constitution sets up the government of the United States and proclaims the basic human and political rights of its people. From the interpretation and elaboration of those words in over 500 volumes of Supreme Court cases comes the constitutional law that structures our government and defines our individual relationship to that government. This book fills the need for an account of that law free from legal jargon and clear enough to inform the educated layperson, yet which does not condescend or slight critical nuance, so that its judgments and analyses will engage students, practitioners, judges, and scholars.
Taking the reader up to and through such controversial recent Supreme Court decisions as the Texas sodomy case and the University of Michigan affirmative action case, Charles Fried sets out to make sense of the main topics of constitutional law: the nature of doctrine, federalism, separation of powers, freedom of expression, religion, liberty, and equality.
Fried draws on his knowledge as a teacher and scholar, and on his unique experience as a practitioner before the Supreme Court, a former Associate Justice of the Supreme Judicial Court of Massachusetts, and Solicitor General of the United States to offer an evenhanded account not only of the substance of constitutional law, but of its texture and underlying themes. His book firmly draws the reader into the heart of today's constitutional battles. He understands what moves today's Court and that understanding illuminates his analyses.
A stunning revision of our founding document’s evolving history that forces us to confront anew the question that animated the founders so long ago: What is our Constitution?
Americans widely believe that the United States Constitution was created when it was drafted in 1787 and ratified in 1788. But in a shrewd rereading of the Founding era, Jonathan Gienapp upends this long-held assumption, recovering the unknown story of American constitutional creation in the decade after its adoption—a story with explosive implications for current debates over constitutional originalism and interpretation.
When the Constitution first appeared, it was shrouded in uncertainty. Not only was its meaning unclear, but so too was its essential nature. Was the American Constitution a written text, or something else? Was it a legal text? Was it finished or unfinished? What rules would guide its interpretation? Who would adjudicate competing readings? As political leaders put the Constitution to work, none of these questions had answers. Through vigorous debates they confronted the document’s uncertainty, and—over time—how these leaders imagined the Constitution radically changed. They had begun trying to fix, or resolve, an imperfect document, but they ended up fixing, or cementing, a very particular notion of the Constitution as a distinctively textual and historical artifact circumscribed in space and time. This means that some of the Constitution’s most definitive characteristics, ones which are often treated as innate, were only added later and were thus contingent and optional.
In a set of cases decided at the end of the nineteenth century, the Supreme Court declared that Congress had "plenary power" to regulate immigration, Indian tribes, and newly acquired territories. Not coincidentally, the groups subject to Congress' plenary power were primarily nonwhite and generally perceived as "uncivilized." The Court left Congress free to craft policies of assimilation, exclusion, paternalism, and domination.
Despite dramatic shifts in constitutional law in the twentieth century, the plenary power case decisions remain largely the controlling law. The Warren Court, widely recognized for its dedication to individual rights, focused on ensuring "full and equal citizenship"--an agenda that utterly neglected immigrants, tribes, and residents of the territories. The Rehnquist Court has appropriated the Warren Court's rhetoric of citizenship, but has used it to strike down policies that support diversity and the sovereignty of Indian tribes.
Attuned to the demands of a new century, the author argues for abandonment of the plenary power cases, and for more flexible conceptions of sovereignty and citizenship. The federal government ought to negotiate compacts with Indian tribes and the territories that affirm more durable forms of self-government. Citizenship should be "decentered," understood as a commitment to an intergenerational national project, not a basis for denying rights to immigrants.
The separation of powers along functional lines--legislative, executive, and judicial--has been a core concept of American constitutionalism ever since the Revolution. As noted constitutional law scholar Gerhard Casper points out in this collection of essays, barren assertions of the importance of keeping the powers separate do not capture the complexity of the task when it is seen as separating power flowing from a single source--the people. Popular sovereignty did not underlie earlier versions of the separation of powers doctrine.
Casper vividly illustrates some of the challenges faced by Washington, Adams, Hamilton, Madison, Gallatin, Jefferson, and many others in Congress and the executive branch as they guided the young nation, setting precedents for future generations. He discusses areas such as congressional-executive relations, foreign affairs, appropriations, and the Judiciary Act of 1789 from the separation of powers vantage point.
The picture of our government's formative years that emerges here, of a rich and overlapping understanding of responsibilities and authority, runs counter to rigid, syllogistic views. Separating Power gives us a clear portrait of the issues of separation of power in the founding period, as well as suggesting that in modern times we should be reluctant to tie separation of powers notions to their own procrustean bed.
In a powerful challenge to conventional wisdom, Philip Hamburger argues that the separation of church and state has no historical foundation in the First Amendment. The detailed evidence assembled here shows that eighteenth-century Americans almost never invoked this principle. Although Thomas Jefferson and others retrospectively claimed that the First Amendment separated church and state, separation became part of American constitutional law only much later.
Hamburger shows that separation became a constitutional freedom largely through fear and prejudice. Jefferson supported separation out of hostility to the Federalist clergy of New England. Nativist Protestants (ranging from nineteenth-century Know Nothings to twentieth-century members of the K.K.K.) adopted the principle of separation to restrict the role of Catholics in public life. Gradually, these Protestants were joined by theologically liberal, anti-Christian secularists, who hoped that separation would limit Christianity and all other distinct religions. Eventually, a wide range of men and women called for separation. Almost all of these Americans feared ecclesiastical authority, particularly that of the Catholic Church, and, in response to their fears, they increasingly perceived religious liberty to require a separation of church from state. American religious liberty was thus redefined and even transformed. In the process, the First Amendment was often used as an instrument of intolerance and discrimination.
Ruth A. Miller excavates a centuries-old history of nonhuman and nonbiological constitutional engagement and outlines a robust mechanical democracy that challenges existing theories of liberal and human political participation. Drawing on an eclectic set of legal, political, and automotive texts from France, Turkey, and the United States, she proposes a radical mechanical re-articulation of three of the most basic principles of democracy: vitality, mobility, and liberty.
Rather than defending a grand theory of materialist or posthumanist politics, or addressing abstract concepts or “things” writ large, Miller invites readers into a self-contained history of constitutionalism situated in a focused discussion of automobile traffic congestion in Paris, Istanbul, and Boston. Within the mechanical public sphere created by automotive space, Snarl finds a model of democratic politics that transforms our most fundamental assumptions about the nature, and constitutional potential, of life, movement, and freedom.
What can a democratic society reasonably do about the perplexing problems of racial intolerance, sexual harassment, incitements to violence, and invasions of privacy? Is it possible to preserve the constitutional ideal of free expression while protecting the community from those who would trample on the rights of others?
Franklyn S. Haiman critically examines the reasoning behind recent efforts to prohibit certain forms of speech and explores the possible consequences to democracy of such moves.
Speech act theory, well known to scholars of rhetoric, communication, and language, underlies this emerging trend in judicial and legislative thinking. The idea that "words are deeds," first articulated in language philosophy by Wittgenstein and elaborated by J. L. Austin and John Searle, is being invoked by some members of the legal community to target objectionable speech. For example, speech codes on some college campuses prohibit racist, sexist, and homophobic expression, and attempts have been made through local laws to classify pornography as a form of sex discrimination. By defining certain kinds of arguably immoral symbolic behavior such as hate speech, obscenity, or portrayals of violence as acts rather than as pure speech, speech act advocates make it easier to argue that such conduct should be subject to social control through the law.
Unlike totalitarian or theocratic societies that see no difference between their concept of morality and the law, however, a democracy must make a distinction between what it regards as immoral and what it makes illegal. Haiman maintains that in the realm of symbolic behavior the line between them should be drawn as closely as possible to expression that results in the most serious, direct, immediate, and physical harm to others. Thus, he joins with former Supreme Court Justice Louis Brandeis in concluding that, absent an emergency, more speech, not enforced silence, should be the aim of a free society.
A new constitutional world burst into American life in the mid-twentieth century. For the first time, the national constitution's religion clauses were extended by the United States Supreme Court to all state and local governments. As energized religious individuals and groups probed the new boundaries between religion and government and claimed their sacred rights in court, a complex and evolving landscape of religion and law emerged.
Sarah Gordon tells the stories of passionate believers who turned to the law and the courts to facilitate a dazzling diversity of spiritual practice. Legal decisions revealed the exquisite difficulty of gauging where religion ends and government begins. Controversies over school prayer, public funding, religion in prison, same-sex marriage, and secular rituals roiled long-standing assumptions about religion in public life. The range and depth of such conflicts were remarkable—and ubiquitous.
Telling the story from the ground up, Gordon recovers religious practices and traditions that have generated compelling claims while transforming the law of religion. From isolated schoolchildren to outraged housewives and defiant prisoners, believers invoked legal protection while courts struggled to produce stable constitutional standards. In a field dominated by controversy, the vital connection between popular and legal constitutional understandings has sometimes been obscured. The Spirit of the Law explores this tumultuous constitutional world, demonstrating how religion and law have often seemed irreconcilable, even as they became deeply entwined in modern America.
The founding of the United States after the American Revolution was so deliberate, so inspired, and so monumental in scope that the key actors considered this new government to be a work of art framed from natural rights. Recognizing the artificial nature of the state, these early politicians believed the culture of a people should inform the development of their governing rules and bodies. Eric Slauter explores these central ideas in this extensive and novel account of the origins and meanings of the Constitution of the United States. Slauter uncovers the hidden cultural histories upon which the document rests, highlights the voices of ordinary people, and considers how the artifice of the state was challenged in its effort to sustain inalienable natural rights alongside slavery and to achieve political secularization at a moment of growing religious expression.
A complement to classic studies of the Constitution’s economic, ideological, and political origins, The State as a Work of Art sheds new light on the origins of the Constitution and on ongoing debates over its interpretation.
The chief mandate of the criminal justice system is not to prosecute the guilty but to safeguard the innocent from wrongful convictions; with this startling assertion, legal scholar George Thomas launches his critique of the U.S. system and its emphasis on procedure at the expense of true justice.
Thomas traces the history of jury trials, an important component of the U.S. justice system, since the American Founding. In the mid-twentieth century, when it became evident that racism and other forms of discrimination were corrupting the system, the Warren Court established procedure as the most important element of criminal justice. As a result, police, prosecutors, and judges have become more concerned about following rules than about ensuring that the defendant is indeed guilty as charged. Recent cases of prisoners convicted of crimes they didn't commit demonstrate that such procedural justice cannot substitute for substantive justice.
American justices, Thomas concludes, should take a lesson from the French, who have instituted, among other measures, the creation of an independent court to review claims of innocence based on new evidence. Similar reforms in the United States would better enable the criminal justice system to fulfill its moral and legal obligation to prevent wrongful convictions.
"Thomas draws on his extensive knowledge of the field to elaborate his elegant and important thesis---that the American system of justice has lost sight of what ought to be its central purpose---protection of the innocent."
—Susan Bandes, Distinguished Research Professor of Law, DePaul University College of Law
"Thomas explores how America's adversary system evolved into one obsessed with procedure for its own sake or in the cause of restraining government power, giving short shrift to getting only the right guy. His stunning, thought-provoking, and unexpected recommendations should be of interest to every citizen who cares about justice."
—Andrew E. Taslitz, Professor of Law, Howard University School of Law
"An unflinching, insightful, and powerful critique of American criminal justice---and its deficiencies. George Thomas demonstrates once again why he is one of the nation's leading criminal procedure scholars. His knowledge of criminal law history and comparative criminal law is most impressive."
—Yale Kamisar, Distinguished Professor of Law, University of San Diego and Clarence Darrow Distinguished University Professor Emeritus of Law, University of Michigan
Since it first appeared in 1960, The Supreme Court Review (SCR) has won acclaim for providing a sustained and authoritative survey of the implications of the Court's most significant decisions. SCR is an in-depth annual critique of the Supreme Court and its work, keeping up on the forefront of the origins, reforms, and interpretations of American law. SCR is written by and for legal academics, judges, political scientists, journalists, historians, economists, policy planners, and sociologists.
This year’s volume features incisive assessments of major legal events, including:
Cristina M. Rodríguez on the Political Significance of Law
Martha Minow on Little Sisters of the Poor
Cass R. Sunstein and Adrian Vermeule on the Unitary Executive
Cary Franklin on Living Textualism
David A. Strauss on Sexual Orientation and the Dynamics of Discrimination
Saikrishna Bangalore Prakash on the Executive’s Privileges and Immunities
Reva B. Siegel on Abortion Restrictions
Maggie Blackhawk on McGirt v. Oklahoma
Richard J. Lazarus on Advocacy History
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