The People Themselves

Author: Larry Kramer
Publisher: Oxford University Press, USA
ISBN: 0195306457
Release Date: 2004
Genre: Law

Examines the distinct difference between how the people and the founding fathers viewed the new Constitution and how it is interpreted over two hundred years later and maintains that originally the people were the ones responsible for seeing that its concepts were properly implemented.

The people themselves

Author: Larry Kramer
Publisher: Oxford University Press, USA
ISBN: 0195169182
Release Date: 2004-06-10
Genre: Fiction

The United States Constitution is the foundation of the longest and most successful democratic experiment in modern human history. It serves not only as legal bedrock for the world's most powerful nation-state, but also, more broadly, it reflects that nation's fundamental aspirations and commitments as a society. Who then has the authority to interpret a blueprint of such extraordinary influence? Americans have come to treat the Constitution as something beyond their competence, something whose meaning should be decided by judges, assisted by a cadre of trained lawyers and academics. Yet this submission to a lawyerly elite is a radical and troublesome departure from what was originally the case. For America's founding generation celebrated the central role of "the people" in supplying government with its energy and direction. In this groundbreaking interpretation of America's founding and its concept of constitutionalism, Larry Kramer reveals how the first generations of Americans fought for and gave birth to a very different system from our current one and held a very different understanding of citizenship from that of most Americans today. "Popular sovereignty" was more than an empty abstraction, more than a mythic philosophical justification for government, and the idea of "the people" was more than a flip rhetorical gesture to be used on the campaign trail. Ordinary Americans exercised active control and sovereignty over their Constitution. The constitutionality of governmental action met with vigorous public debate in struggles whose outcomes might be greeted with celebratory feasts and bonfires, or with belligerent resistance. The Constitution remained, fundamentally, an act of popular will: the people's charter, made by the people. And it was "the people themselves" who were responsible for seeing that it was properly interpreted and implemented. With this book, Larry Kramer vaults to the forefront of constitutional theory and interpretation. In the process, he rekindles the original spark of "We, the People," inviting every citizen to join him in reclaiming the Constitution's legacy as, in Franklin D. Roosevelt's words, "a layman's instrument of government" and not "a lawyer's contract."

The Civic Constitution

Author: Elizabeth Beaumont
Publisher: Oxford University Press
ISBN: 9780199940066
Release Date: 2014
Genre: Law

The Civic Constitution provides a compelling case for rethinking the U.S. Constitution. By exploring pivotal struggles over governmental power, individual rights, and the boundaries of citizenship, this book challenges reigning approaches and reveals the profound importance of 'civic founders' who worked to reinvent the constitutional order.

Towards Juristocracy

Author: Ran Hirschl
Publisher: Harvard University Press
ISBN: 0674038673
Release Date: 2009-06-01
Genre: Law

In countries and supranational entities around the globe, constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries. The constitutionalization of rights and the establishment of judicial review are widely believed to have benevolent and progressive origins, and significant redistributive, power-diffusing consequences. Ran Hirschl challenges this conventional wisdom. Drawing upon a comprehensive comparative inquiry into the political origins and legal consequences of the recent constitutional revolutions in Canada, Israel, New Zealand, and South Africa, Hirschl shows that the trend toward constitutionalization is hardly driven by politicians' genuine commitment to democracy, social justice, or universal rights. Rather, it is best understood as the product of a strategic interplay among hegemonic yet threatened political elites, influential economic stakeholders, and judicial leaders. This self-interested coalition of legal innovators determines the timing, extent, and nature of constitutional reforms. Hirschl demonstrates that whereas judicial empowerment through constitutionalization has a limited impact on advancing progressive notions of distributive justice, it has a transformative effect on political discourse. The global trend toward juristocracy, Hirschl argues, is part of a broader process whereby political and economic elites, while they profess support for democracy and sustained development, attempt to insulate policymaking from the vicissitudes of democratic politics.

Weak Courts Strong Rights

Author: Mark Tushnet
Publisher: Princeton University Press
ISBN: 9780691143200
Release Date: 2009-08-09
Genre: Law

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.

Constitutional Dialogue in Common Law Asia

Author: Po Jen Yap
Publisher: OUP Oxford
ISBN: 9780191055935
Release Date: 2015-07-16
Genre: Law

In a comprehensive examination of the constitutional systems of Hong Kong, Malaysia, and Singapore, Po Jen Yap contributes to a field that has traditionally focussed on Western jurisdictions. Drawing on the history and constitutional framework of these Asian law systems, this book examines the political structures and traditions that were inherited from the British colonial government and the major constitutional developments since decolonization. Yap examines the judicial crises that have occurred in each of the three jurisdictions and explores the development of sub-constitutional doctrines that allows the courts to preserve the right of the legislature to disagree with the courts' decisions using the ordinary political processes. The book focusses on how these novel judicial techniques can be applied to four core constitutional concerns: freedom of expression, freedom of religion, right to equality, and criminal due process rights. Each chapter examines one core topic and defends a model of dialogic judicial review that offers a compelling alternative to legislative or judicial supremacy.

Original Meanings

Author: Jack N. Rakove
Publisher: Vintage
ISBN: 9780307434517
Release Date: 2010-04-21
Genre: Political Science

From abortion to same-sex marriage, today's most urgent political debates will hinge on this two-part question: What did the United States Constitution originally mean and who now understands its meaning best? Rakove chronicles the Constitution from inception to ratification and, in doing so, traces its complex weave of ideology and interest, showing how this document has meant different things at different times to different groups of Americans. From the Trade Paperback edition.

The Revolutionary Constitution

Author: David J. Bodenhamer
Publisher: OUP USA
ISBN: 9780195378337
Release Date: 2012-02-08
Genre: History

The Revolutionary Constitution examines how the Constitution has served as a dynamic and contested framework for legitimating power and advancing liberty in which our past concerns and experiences influence our present understanding. Informed by the latest scholarship, the book is an interpretive synthesis linking constitutional history with American political and social history.

Law and Disagreement

Author: Jeremy Waldron
Publisher: OUP Oxford
ISBN: 9780191024474
Release Date: 1999-03-11
Genre: Law

When people disagree about justice and about individual rights, how should political decisions be made among them? How should they decide about issues like tax policy, welfare provision, criminal procedure, discrimination law, hate speech, pornography, political dissent and the limits of religious toleration? The most familiar answer is that these decisions should be made democratically, by majority voting among the people or their representatives. Often, however, this answer is qualified by adding ' providing that the majority decision does not violate individual rights.' In this book Jeremy Waldron has revisited and thoroughly revised thirteen of his most recent essays. He argues that the familiar answer is correct, but that the qualification about individual rights is incoherent. If rights are the very things we disagree about, then we are quarrelling precisely about what that qualification should amount to. At best, what it means is that disagreements about rights should be resolved by some other procedure, for example, by majority voting, not among the people or their representatives, but among judges in a court. This proposal - although initially attractive - seems much less agreeable when we consider that the judges too disagree about rights, and they disagree about them along exactly the same lines as the citizens. This book offers a comprehensive critique of the idea of the judicial review of legislation. The author argues that a belief in rights is not the same as a commitment to a Bill of Rights. He shows the flaws and difficulties in many common defences of the 'democratic' character of judicial review. And he argues for an alternative approach to the problem of disagreement: when disagreements about rights arise, the respectful way to resolve them is by decision-making among the right-holders on a basis that reflects an equal respect for them as the holders of views about rights. This respect for ordinary right-holders, he argues, has been sadly lacking in the theories of justice, rights, and constitutionalism put forward in recent years by philosophers such as John Rawls and Donald Dworkin. But the book is not only about judicial review. The first tranche of essays is devoted to a theory of legislation, a theory which highlights the size, the scale and the diversity of modern legislative assemblies. Although legislation is often denigrated as a source of law, Waldron seeks to restore its tattered dignity. He deprecates the tendency to disparage legislatures and argues that such disparagement is often a way of bolstering the legitimacy of the courts, as if we had to transform our parliaments into something like the American Congress to justify importing American-style judicial reviews. Law and Disagreement redresses the balances in modern jurisprudence. It presents legislation by a representative assembly as a form of law making which is especially apt for a society whose members disagree with one another about fundamental issues of principle, for it is a form of law making that does not attempt to conceal the fact that our decisions are made and claim their authority in the midst of, not in spite of, our political and moral disagreements. This timely rights-based defence of majoritarian legislation will be welcomed by scholars of legal and political philosophy throughout the world.

Political Foundations of Judicial Supremacy

Author: Keith E. Whittington
Publisher: Princeton University Press
ISBN: 9781400827756
Release Date: 2009-03-09
Genre: Law

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.

Peopling the Constitution

Author: John E. Finn
Publisher:
ISBN: 0700619623
Release Date: 2014
Genre: Law

A bold and innovative work of constitutional theory which takes seriously "We the People" and asks us to define what we stand for and how we will take responsibility for making it happen.

Constitutional Theocracy

Author: Ran Hirschl
Publisher: Harvard University Press
ISBN: 9780674059375
Release Date: 2011-05-05
Genre: Law

In this ground-breaking book, renowned constitutional scholar Ran Hirschl describes “constitutional theocracy,” a new, hybrid form of government that has emerged from an overlapping of two parallel trends during the 20th century: the rise in political religion on the one hand and the spread of constitutional forms of government to most countries in the world on the other. Hirschl delivers two blockbuster theses: That in most constitutional theocracies, 1) courts are the primary secular agents of government, and 2) the electorate usually has a choice between a secular party that is against redistribution of wealth and a more theological party that supports redistribution. This last thesis, especially, will be news to many of the book’s American readers, who are accustomed to a theological politics stridently opposed to redistribution.

Justice in the EU

Author: Floris De Witte
Publisher: Oxford University Press, USA
ISBN: 9780198724346
Release Date: 2015
Genre: Law

In Justice in the EU: The Emergence of Transnational Solidarity, Floris de Witte argues that European Union law can be understood as an instrument for the elaboration of what justice is, means, and requires on the level beyond the nation state. Approaching the question of justice from the European perspective, however, challenges us to think beyond the contractarian idea that equates justice with national political self-determination. A proper model of justice demands a tiered institutional and normative understanding of justice, involving both the nation state and the EU, which can make sense of the new ties between individual citizens that the process of European integration continues to generate. It also requires that we construct a theory of transnational solidarity that can explain what those new ties tell us about our transnational obligations of justice. This book tackles three issues in turn. It explains which precise institutional and normative structures are indispensable in the pursuit of justice; how the European Union can be understood to increase our capacity for the attainment of justice; and formulates a theory of transnational solidarity that informs the interaction between national and European spheres. Three different types of transnational solidarity are identified and carefully traced throughout the case law of the Court of Justice: market solidarity, communitarian solidarity, and aspirational solidarity. Read together, these three transnational solidarities tell us exactly what justice means in the EU.

The Will of the People

Author: Barry Friedman
Publisher: Farrar, Straus and Giroux
ISBN: 1429989955
Release Date: 2009-09-29
Genre: Law

In recent years, the justices of the Supreme Court have ruled definitively on such issues as abortion, school prayer, and military tribunals in the war on terror. They decided one of American history's most contested presidential elections. Yet for all their power, the justices never face election and hold their offices for life. This combination of influence and apparent unaccountability has led many to complain that there is something illegitimate—even undemocratic—about judicial authority. In The Will of the People, Barry Friedman challenges that claim by showing that the Court has always been subject to a higher power: the American public. Judicial positions have been abolished, the justices' jurisdiction has been stripped, the Court has been packed, and unpopular decisions have been defied. For at least the past sixty years, the justices have made sure that their decisions do not stray too far from public opinion. Friedman's pathbreaking account of the relationship between popular opinion and the Supreme Court—from the Declaration of Independence to the end of the Rehnquist court in 2005—details how the American people came to accept their most controversial institution and shaped the meaning of the Constitution.