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 153
... ideal appeared to abandon the old pursuit of national unity because it posited that there would and should always be an organized political opposition striving to wrest com- mand of government from the reigning incumbents . In practical ...
... ideal appeared to abandon the old pursuit of national unity because it posited that there would and should always be an organized political opposition striving to wrest com- mand of government from the reigning incumbents . In practical ...
Side 196
... ideal of social author- ity . Though this ideal had been sharply challenged by the mid- eighteenth century , the colonial secession from Great Britain gave indigenous gentry authority an extended life ; but as the founding generation ...
... ideal of social author- ity . Though this ideal had been sharply challenged by the mid- eighteenth century , the colonial secession from Great Britain gave indigenous gentry authority an extended life ; but as the founding generation ...
Side 351
... ideal . Unlike Lochner for economic regulation or Dred Scott for territorial slavery restrictions , the Court was not prohib- ited by the equality ideal from intervening in the abortion dispute . The equality ideal permitted , though it ...
... ideal . Unlike Lochner for economic regulation or Dred Scott for territorial slavery restrictions , the Court was not prohib- ited by the equality ideal from intervening in the abortion dispute . The equality ideal permitted , though it ...
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