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Author: James E. Fleming Publisher: University of Chicago Press ISBN: 0226253430 Category : Law Languages : en Pages : 350
Book Description
Famously described by Louis Brandeis as "the most comprehensive of rights" and 'the right most valued by civilized men," the right of privacy or autonomy is more embattled during modern times than any other. Debate over its meaning, scope, and constitutional status is so widespread that it all but defines the post-1960s era of constitutional interpretation. Conservative Robert Bork called it "a loose canon in the law," while feminist Catharine MacKinnon attacked it as the “right of men to be left alone to oppress women.” Can a right with such prominent critics from across the political spectrum be grounded in constitutional law? In this book, James Fleming responds to these controversies by arguing that the right to privacy or autonomy should be grounded in a theory of securing constitutional democracy. His framework seeks to secure the basic liberties that are preconditions for deliberative democracy—to allow citizens to deliberate about the institutions and policies of their government—as well as deliberative autonomy—to enable citizens to deliberate about the conduct of their own lives. Together, Fleming shows, these two preconditions can afford everyone the status of free and equal citizenship in our morally pluralistic constitutional democracy.
Author: James E. Fleming Publisher: University of Chicago Press ISBN: 0226253430 Category : Law Languages : en Pages : 350
Book Description
Famously described by Louis Brandeis as "the most comprehensive of rights" and 'the right most valued by civilized men," the right of privacy or autonomy is more embattled during modern times than any other. Debate over its meaning, scope, and constitutional status is so widespread that it all but defines the post-1960s era of constitutional interpretation. Conservative Robert Bork called it "a loose canon in the law," while feminist Catharine MacKinnon attacked it as the “right of men to be left alone to oppress women.” Can a right with such prominent critics from across the political spectrum be grounded in constitutional law? In this book, James Fleming responds to these controversies by arguing that the right to privacy or autonomy should be grounded in a theory of securing constitutional democracy. His framework seeks to secure the basic liberties that are preconditions for deliberative democracy—to allow citizens to deliberate about the institutions and policies of their government—as well as deliberative autonomy—to enable citizens to deliberate about the conduct of their own lives. Together, Fleming shows, these two preconditions can afford everyone the status of free and equal citizenship in our morally pluralistic constitutional democracy.
Author: Lane V. Sunderland Publisher: ISBN: Category : Law Languages : en Pages : 384
Book Description
With quiet eloquence, Lane Sunderland argues that we must reclaim the fundamental principles of the Constitution if we are to restore democratic government to its proper role in American life. For far too long, he contends, the popular will has been held in check by an overly powerful Supreme Court using non-constitutional principles to make policy and promote its own political agendas. His work shows why this has diminished American democracy and what we can do to revive it. Sunderland presents a strong, thoughtful challenge to the constitutional theories promoted by Ronald Dworkin, Archibald Cox, Richard Epstein, Michael Perry, John Hart Ely, Robert Bork, Philip Kurland, Laurence Tribe, Mark Tushnet, and Catharine MacKinnon—an enormously diverse group united by an apparent belief in judicial supremacy. Their theories, he demonstrates, undermine the democratic foundations of the Constitution and the power of the majority to resolve for itself important questions of justice. Central to this enterprise is Sunderland's reconsideration of The Federalist as the first, most reliable, and most profound commentary on the Constitution. "The Federalist," he states, "is crucial because it explains the underlying theory of the Constitution as a whole, a theory that gives meaning to its particular provisions." In addition, Sunderland reexamines the Declaration of Independence and the work of Hobbes, Locke, and Montesquieu, in order to better define the nature and limits of their influence on the Framers. His reading of these works in conjunction with The Federalist shows just how far afield contemporary commentators have strayed. Sunderland deliberately echoes and amplifies Madison's wisdom in Federalist No. 10 that the object of the Constitution is "to secure the public good and private rights . . . and at the same time to preserve the spirit and form of popular government." To attain that object, he persuasively argues, requires that the judiciary acknowledge and enforce the constitutional limitations upon its own powers. In an era loudly proclaiming the return of popular government, majority rule, and the "will of the people," that argument is especially relevant and appealing.
Author: Mark Tushnet Publisher: Cambridge University Press ISBN: 1009058312 Category : Law Languages : en Pages : 197
Book Description
Twenty-first-century constitutions now typically include a new 'fourth branch' of government, a group of institutions charged with protecting constitutional democracy, including electoral management bodies, anticorruption agencies, and ombuds offices. This book offers the first general theory of the fourth branch; in a world where governance is exercised through political parties, we cannot be confident that the traditional three branches are enough to preserve constitutional democracy. The fourth branch institutions can, by concentrating within themselves distinctive forms of expertise, deploy that expertise more effectively than the traditional branches are capable of doing. However, several case studies of anticorruption efforts, electoral management bodies, and audit bureaus show that the fourth branch institutions do not always succeed in protecting constitutional democracy, and indeed sometimes undermine it. The book concludes with some cautionary notes about placing too much hope in these – or, indeed, in any – institutions as the guarantors of constitutional democracy.
Author: Tom Ginsburg Publisher: University of Chicago Press ISBN: 022656438X Category : Law Languages : en Pages : 306
Book Description
Democracies are in danger. Around the world, a rising wave of populist leaders threatens to erode the core structures of democratic self rule. In the United States, the election of Donald Trump marked a decisive turning point for many. What kind of president calls the news media the “enemy of the American people,” or sees a moral equivalence between violent neo-Nazi protesters in paramilitary formation and residents of a college town defending the racial and ethnic diversity of their homes? Yet, whatever our concerns about the current president, we can be assured that the Constitution offers safeguards to protect against lasting damage—or can we? How to Save a Constitutional Democracy mounts an urgent argument that we can no longer afford to be complacent. Drawing on a rich array of other countries’ experiences with democratic backsliding, Tom Ginsburg and Aziz Z. Huq show how constitutional rules can either hinder or hasten the decline of democratic institutions. The checks and balances of the federal government, a robust civil society and media, and individual rights—such as those enshrined in the First Amendment—do not necessarily succeed as bulwarks against democratic decline. Rather, Ginsburg and Huq contend, the sobering reality for the United States is that, to a much greater extent than is commonly realized, the Constitution’s design makes democratic erosion more, not less, likely. Its structural rigidity has had the unforeseen consequence of empowering the Supreme Court to fill in some details—often with doctrines that ultimately facilitate rather than inhibit the infringement of rights. Even the bright spots in the Constitution—the First Amendment, for example—may have perverse consequences in the hands of a deft communicator, who can degrade the public sphere by wielding hateful language that would be banned in many other democracies. But we—and the rest of the world—can do better. The authors conclude by laying out practical steps for how laws and constitutional design can play a more positive role in managing the risk of democratic decline.
Author: Donald L. Horowitz Publisher: Yale University Press ISBN: 0300254369 Category : Political Science Languages : en Pages : 284
Book Description
From one of our leading scholars of comparative constitutionalism, advice for everyone involved in the surprisingly common practice of constitution-writing Enhancing prospects for democracy is an important objective in the process of creating a new constitution. Donald L. Horowitz argues that constitutional processes ought to be geared to securing commitment to democracy by those who participate in them. Using evidence from numerous constitutional processes, he makes a strong case for a process intended to increase the likelihood of a democratic outcome. He also assesses tradeoffs among various process attributes and identifies some that might impede democratic outcomes. This book provides a fresh perspective on constitutional processes that will interest students and scholars. It also offers sound advice for everyone involved in the surprisingly common practice of constitution‑writing.
Author: James E. Fleming Publisher: Oxford University Press ISBN: 0190259000 Category : Law Languages : en Pages : 262
Book Description
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.
Author: John Agresto Publisher: Cornell University Press ISBN: 1501712918 Category : Law Languages : en Pages : 184
Book Description
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: James E. Fleming Publisher: University of Chicago Press ISBN: 0226821404 Category : Law Languages : en Pages : 285
Book Description
A second death of substantive due process? Our practice of substantive due process ; The coherence and structure of substantive due process ; The rational continuum of ordered liberty -- Substantive due process does not "effectively decree the end of morals legislation". Is substantive due process on a slippery slope to "the end of all morals legislation"? ; Is moral disapproval enough to justify traditional morals legislation -- Substantive due process does not enact a utopian economic or moral theory. The ghost of Lochner v. New York ; Does substantive due process enact Mill's On Liberty? -- Conflicts between liberty and equality. The grounds for protecting basic liberties: liberty together with equality ; Accommodating gay and lesbian rights and religious liberty -- The future. The future of substantive due process.