The Constitution in ConflictBelknap Press, 1992 - 462 sider Lincoln was not alone in believing that the Constitution could be interpreted by any of the three branches of the government. Today, however, the Supreme Court's role as the ultimate arbiter of constitutional matters is widely accepted. But as Robert Burt shows in his provocative new book, this was not always the case, nor should it be. In a remarkably innovative reconstruction of constitutional history, Burt traces the controversy over judicial supremacy back to the founding fathers, with Madison and Hamilton as the principal antagonists. The conflicting views these founders espoused--equal interpretive powers among the federal branches on one hand and judicial supremacy on the other--remain plausible readings of "original intent" and so continue to present us with a choice. 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 proper task of the judiciary, he contends--as epitomized in Brown v. Board of Education--is to actively protect minorities against "enslaving" legislative defeats while, at the same time, to refrain from awarding conclusive "victory" to these minorities against their adversaries. From this premise, Burt goes on to examine key decisions such as Roe v. Wade, U.S. v. Nixon, and the death penalty cases, all of which demonstrate how the Court has fallen away from egalitarian jurisprudence and returned to an essentially authoritarian conception of its role. With an eye to the urgent issues at stake in these cases, Burt identifies the alternative results that an egalitarian conception of judicial authority would dictate. Thefirst 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. |
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Side 391
... February 17 , 1825 , 3 Letters 483 . 112. Madison reiterated his reluctance for moving " out of doors " to en- gage popular participation on constitutional issues in his 1823 letter to Jef- ferson , where he repeated his Federalist ...
... February 17 , 1825 , 3 Letters 483 . 112. Madison reiterated his reluctance for moving " out of doors " to en- gage popular participation on constitutional issues in his 1823 letter to Jef- ferson , where he repeated his Federalist ...
Side 404
... February 27 , 1803 , 10 Jefferson's Writings 370–71 . 5. Letter to Colonel Benjamin Hawkins , February 18 , 1803 , id . at 363 . 6. Cited in Michael Paul Rogin , Fathers and Children : Andrew Jackson and the Subjugation of the American ...
... February 27 , 1803 , 10 Jefferson's Writings 370–71 . 5. Letter to Colonel Benjamin Hawkins , February 18 , 1803 , id . at 363 . 6. Cited in Michael Paul Rogin , Fathers and Children : Andrew Jackson and the Subjugation of the American ...
Side 417
... February House debate , Representative Hotchkiss had faulted the first draft of the Amendment for failing to provide safeguards against this eventuality . Id . at 1095 ( February 28 , 1866 ) . 26. Cong . Globe , 39th Cong . , 1st Sess ...
... February House debate , Representative Hotchkiss had faulted the first draft of the Amendment for failing to provide safeguards against this eventuality . Id . at 1095 ( February 28 , 1866 ) . 26. Cong . Globe , 39th Cong . , 1st Sess ...
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