James A. Gardner and Jim Rossi (eds)
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780195368321
- eISBN:
- 9780199867509
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195368321.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This book presents a range or perspectives on the role of state constitutions within the context of federalism. Rejecting both the old dual federalism and the newer judicial federalism models, this ...
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This book presents a range or perspectives on the role of state constitutions within the context of federalism. Rejecting both the old dual federalism and the newer judicial federalism models, this book understands the generation, development, interpretation, and enforcement of constitutional norms at the national and state levels to be best conceived as constituent activities of a single, collective enterprise conducted by many actors located in many sites scattered throughout the system. The chapters in this book present a conception of national and subnational constitutional law as complementary partners in a complex, collective enterprise of constitutional self-governance. The book aims to advance an understanding of state constitutions in the broader inter-institutional process of constitutional dialogue.Less
This book presents a range or perspectives on the role of state constitutions within the context of federalism. Rejecting both the old dual federalism and the newer judicial federalism models, this book understands the generation, development, interpretation, and enforcement of constitutional norms at the national and state levels to be best conceived as constituent activities of a single, collective enterprise conducted by many actors located in many sites scattered throughout the system. The chapters in this book present a conception of national and subnational constitutional law as complementary partners in a complex, collective enterprise of constitutional self-governance. The book aims to advance an understanding of state constitutions in the broader inter-institutional process of constitutional dialogue.
James A. Gardner
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780195392616
- eISBN:
- 9780199855438
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195392616.001.0001
- Subject:
- Law, Constitutional and Administrative Law
Election campaigns ought to be serious occasions in the life of a democratic polity—or so we profess to believe. Americans, however, are haunted by the fear that their election campaigns fall far ...
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Election campaigns ought to be serious occasions in the life of a democratic polity—or so we profess to believe. Americans, however, are haunted by the fear that their election campaigns fall far short of the ideal to which they aspire. The typical modern American election campaign seems crass, shallow, and unengaging. The arena of our democratic politics lies in an uncomfortable chasm between our political ideals and everyday reality. This book examines the role of legal institutions in constituting the disjunction between political ideal and reality. The book explores the contemporary American ideal of democratic citizenship in election campaigns by tracing it to its historical sources, documenting its thorough infiltration of legal norms, evaluating its feasibility in light of the findings of empirical social science, and testing it against the requirements of democratic theory. The book concludes that contemporary concerns about the poor quality of modern democracy are valid, but misdirected. Such concerns are misdirected because they rest on an unrealistic conception of what campaigns are capable of accomplishing, and because they misdiagnose the problems observable in campaigns as problems of campaigns. The real challenges to democratic self-governance lie not within the confined and artificial boundaries of the formal campaign itself, but in our everyday, non-electoral politics.Less
Election campaigns ought to be serious occasions in the life of a democratic polity—or so we profess to believe. Americans, however, are haunted by the fear that their election campaigns fall far short of the ideal to which they aspire. The typical modern American election campaign seems crass, shallow, and unengaging. The arena of our democratic politics lies in an uncomfortable chasm between our political ideals and everyday reality. This book examines the role of legal institutions in constituting the disjunction between political ideal and reality. The book explores the contemporary American ideal of democratic citizenship in election campaigns by tracing it to its historical sources, documenting its thorough infiltration of legal norms, evaluating its feasibility in light of the findings of empirical social science, and testing it against the requirements of democratic theory. The book concludes that contemporary concerns about the poor quality of modern democracy are valid, but misdirected. Such concerns are misdirected because they rest on an unrealistic conception of what campaigns are capable of accomplishing, and because they misdiagnose the problems observable in campaigns as problems of campaigns. The real challenges to democratic self-governance lie not within the confined and artificial boundaries of the formal campaign itself, but in our everyday, non-electoral politics.
Yvonne Zylan
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199735082
- eISBN:
- 9780199894802
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199735082.003.0006
- Subject:
- Law, Constitutional and Administrative Law
This chapter uses the framework developed in Chapter 3 to examine same-sex marriage. Topics discussed include same-sex marriage litigation, the nature of marriage, and how same-sex marriage ...
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This chapter uses the framework developed in Chapter 3 to examine same-sex marriage. Topics discussed include same-sex marriage litigation, the nature of marriage, and how same-sex marriage litigation strategies produce and partake of a self-governance project that not only confines unruly sexuality to binary sexual categories but also works to erase and disparage gayness itself.Less
This chapter uses the framework developed in Chapter 3 to examine same-sex marriage. Topics discussed include same-sex marriage litigation, the nature of marriage, and how same-sex marriage litigation strategies produce and partake of a self-governance project that not only confines unruly sexuality to binary sexual categories but also works to erase and disparage gayness itself.
Sanford Levinson
- Published in print:
- 2012
- Published Online:
- April 2015
- ISBN:
- 9780199890750
- eISBN:
- 9780190260088
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:osobl/9780199890750.003.0004
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines how a “republican form of government” differs from “democracy” in the United States. It suggests that what counts as an adequately “representative” democracy is not fully ...
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This chapter examines how a “republican form of government” differs from “democracy” in the United States. It suggests that what counts as an adequately “representative” democracy is not fully self-evident; that a number of states, while not rejecting the importance of representation, supplement it with options for more direct democracy; and that the U.S. Constitution provides no canonical definition of what constitutes a republican form of government. It also asks why proponents of republicanism and de facto opponents of democracy advocated the actual institutional structures that were adopted in 1787 and remain significantly unchanged more than 200 years later. Finally, it explores the idea of self-governance and James Madison's theory of “faction” as well as his views about majority rule and representative government.Less
This chapter examines how a “republican form of government” differs from “democracy” in the United States. It suggests that what counts as an adequately “representative” democracy is not fully self-evident; that a number of states, while not rejecting the importance of representation, supplement it with options for more direct democracy; and that the U.S. Constitution provides no canonical definition of what constitutes a republican form of government. It also asks why proponents of republicanism and de facto opponents of democracy advocated the actual institutional structures that were adopted in 1787 and remain significantly unchanged more than 200 years later. Finally, it explores the idea of self-governance and James Madison's theory of “faction” as well as his views about majority rule and representative government.
J. Harvie Wilkinson
- Published in print:
- 2012
- Published Online:
- April 2015
- ISBN:
- 9780199846016
- eISBN:
- 9780190260040
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:osobl/9780199846016.003.0002
- Subject:
- Law, Constitutional and Administrative Law
This chapter analyzes Justice William J. Brennan's theory of living constitutionalism. Brennan believed that the evolution of textual meaning is not only possible but desirable. He emphatically ...
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This chapter analyzes Justice William J. Brennan's theory of living constitutionalism. Brennan believed that the evolution of textual meaning is not only possible but desirable. He emphatically rejected original intent and original public meaning as the key to constitutional interpretation. He also acknowledged that living constitutionalism might pose a threat to self-governance by overturning the fruits of the majoritarian political process. To solve that problem, he encouraged judges to implement the contemporary values of the American people when the political process failed to take those values into account.Less
This chapter analyzes Justice William J. Brennan's theory of living constitutionalism. Brennan believed that the evolution of textual meaning is not only possible but desirable. He emphatically rejected original intent and original public meaning as the key to constitutional interpretation. He also acknowledged that living constitutionalism might pose a threat to self-governance by overturning the fruits of the majoritarian political process. To solve that problem, he encouraged judges to implement the contemporary values of the American people when the political process failed to take those values into account.
