Emily M. Calhoun
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780195399745
- eISBN:
- 9780199894444
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195399745.001.0001
- Subject:
- Law, Constitutional and Administrative Law
Constitutional “losers” represent a thorny and longstanding problem in American constitutional law. Given the adversarial system in the United States, the way that rights cases are decided means that ...
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Constitutional “losers” represent a thorny and longstanding problem in American constitutional law. Given the adversarial system in the United States, the way that rights cases are decided means that regardless of whether a losing side has committed any actions that cause harm to others, they typically suffer unnecessary harm as a consequence of decisions. In areas such as affirmative action and gay rights, the losers are essentially punished for losing despite neither intending nor causing injury. This book draws upon conflict resolution theory, political theory, and Habermasian discourse theory to argue that in such cases, the Court must work harder to avoid inflicting unnecessary harm on Constitutional losers. But for this to happen, the book contends, the role of judges needs to be reconceptualized. It contends that the Court should not perceive itself simply as an adversarial forum, but also as a “transactional” one, where losers are not simply losers but participants in a process capable of addressing and ameliorating the effects that come with loss.Less
Constitutional “losers” represent a thorny and longstanding problem in American constitutional law. Given the adversarial system in the United States, the way that rights cases are decided means that regardless of whether a losing side has committed any actions that cause harm to others, they typically suffer unnecessary harm as a consequence of decisions. In areas such as affirmative action and gay rights, the losers are essentially punished for losing despite neither intending nor causing injury. This book draws upon conflict resolution theory, political theory, and Habermasian discourse theory to argue that in such cases, the Court must work harder to avoid inflicting unnecessary harm on Constitutional losers. But for this to happen, the book contends, the role of judges needs to be reconceptualized. It contends that the Court should not perceive itself simply as an adversarial forum, but also as a “transactional” one, where losers are not simply losers but participants in a process capable of addressing and ameliorating the effects that come with loss.
Christopher Tomlins (ed.)
- Published in print:
- 2008
- Published Online:
- June 2013
- ISBN:
- 9780804759328
- eISBN:
- 9780804779777
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804759328.003.0003
- Subject:
- Law, Criminal Law and Criminology
This chapter attempts to create a genealogy of the police in its relationship to American constitutional law. It argues that the police is manifested in state and federal juridical discourse both as ...
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This chapter attempts to create a genealogy of the police in its relationship to American constitutional law. It argues that the police is manifested in state and federal juridical discourse both as an expression of unrestricted and undefined powers of governance (internal police) exercised by the states, and as an increasingly vociferous insistence that the federal nation-state enjoys similarly undefined capacities—the power “to do all acts and things which independent states may of right do”—all rooted in a discourse of sovereign succession and state necessity. This requires drawing together several distinct strands of constitutional law: domestic regulatory law, notably commerce power; constitutional doctrine with regard to indigenous peoples and immigrants; and the legalities attending continental and transoceanic expansion. Because this is a genealogy of constitutional law, the chapter begins by considering police in the context not of history but of founding, that is, the moment of profound rupture with the past when the federal state was first defined and enabled.Less
This chapter attempts to create a genealogy of the police in its relationship to American constitutional law. It argues that the police is manifested in state and federal juridical discourse both as an expression of unrestricted and undefined powers of governance (internal police) exercised by the states, and as an increasingly vociferous insistence that the federal nation-state enjoys similarly undefined capacities—the power “to do all acts and things which independent states may of right do”—all rooted in a discourse of sovereign succession and state necessity. This requires drawing together several distinct strands of constitutional law: domestic regulatory law, notably commerce power; constitutional doctrine with regard to indigenous peoples and immigrants; and the legalities attending continental and transoceanic expansion. Because this is a genealogy of constitutional law, the chapter begins by considering police in the context not of history but of founding, that is, the moment of profound rupture with the past when the federal state was first defined and enabled.
- Published in print:
- 2002
- Published Online:
- March 2013
- ISBN:
- 9780226677231
- eISBN:
- 9780226677224
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226677224.003.0012
- Subject:
- Law, Constitutional and Administrative Law
The twelve-month period beginning in May 1808 was one of the most important in the entire history of American constitutional law. Three men made decisions, in each case a personally difficult ...
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The twelve-month period beginning in May 1808 was one of the most important in the entire history of American constitutional law. Three men made decisions, in each case a personally difficult decision, that signaled a crucial and beneficial turning point in the administration of the system of fundamental law that the U.S. Constitution ordains. The legitimacy of subsequent constitutional decision making rests on the extent to which the decision makers follow the precedents set in that fateful year. The first of these men was William Johnson, associate justice of the U.S. Supreme Court. Johnson was a South Carolinian of working-class origins who managed to attend Princeton and then rise to prominence in his home state's politics at an early age. He became speaker of the state house when twenty-six, and a year later was elected to the state's constitutional court.Less
The twelve-month period beginning in May 1808 was one of the most important in the entire history of American constitutional law. Three men made decisions, in each case a personally difficult decision, that signaled a crucial and beneficial turning point in the administration of the system of fundamental law that the U.S. Constitution ordains. The legitimacy of subsequent constitutional decision making rests on the extent to which the decision makers follow the precedents set in that fateful year. The first of these men was William Johnson, associate justice of the U.S. Supreme Court. Johnson was a South Carolinian of working-class origins who managed to attend Princeton and then rise to prominence in his home state's politics at an early age. He became speaker of the state house when twenty-six, and a year later was elected to the state's constitutional court.
Emily M. Calhoun
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780195399745
- eISBN:
- 9780199894444
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195399745.003.0001
- Subject:
- Law, Constitutional and Administrative Law
This introductory chapter sets out the focus of the book, namely justices' obligations to constitutional losers. The goal is to engage ordinary citizens, as well as members of the legal profession, ...
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This introductory chapter sets out the focus of the book, namely justices' obligations to constitutional losers. The goal is to engage ordinary citizens, as well as members of the legal profession, in a discussion of the legitimacy of judicial review. The chapter also discusses issues such as the legitimacy of judicial review, judicial activism, and the apparent indifference of justices to the harms inflicted on constitutional losers. An overview of the subsequent chapters is presented.Less
This introductory chapter sets out the focus of the book, namely justices' obligations to constitutional losers. The goal is to engage ordinary citizens, as well as members of the legal profession, in a discussion of the legitimacy of judicial review. The chapter also discusses issues such as the legitimacy of judicial review, judicial activism, and the apparent indifference of justices to the harms inflicted on constitutional losers. An overview of the subsequent chapters is presented.
Rodney A. Smolla
- Published in print:
- 2011
- Published Online:
- March 2016
- ISBN:
- 9780814741030
- eISBN:
- 9780814788561
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814741030.003.0006
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines competing conceptions of equality in American constitutional law. It begins with an overview of the case of four white members of Duke University's lacrosse team who were ...
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This chapter examines competing conceptions of equality in American constitutional law. It begins with an overview of the case of four white members of Duke University's lacrosse team who were accused of raping an African American stripper, as well as its significance to the constitutional meaning of “equal protection of the laws.” It then considers two competing notions of the meaning of “equality,” “process equality” and “outcome equality,” before turning to a discussion of affirmative action in colleges and universities. It also explores the constitutional test for gender discrimination by citing Supreme Court rulings in cases such as Mississippi University for Women v. Hogan (1982) and United States v. Virginia (1996).Less
This chapter examines competing conceptions of equality in American constitutional law. It begins with an overview of the case of four white members of Duke University's lacrosse team who were accused of raping an African American stripper, as well as its significance to the constitutional meaning of “equal protection of the laws.” It then considers two competing notions of the meaning of “equality,” “process equality” and “outcome equality,” before turning to a discussion of affirmative action in colleges and universities. It also explores the constitutional test for gender discrimination by citing Supreme Court rulings in cases such as Mississippi University for Women v. Hogan (1982) and United States v. Virginia (1996).
Rodney A. Smolla
- Published in print:
- 2011
- Published Online:
- March 2016
- ISBN:
- 9780814741030
- eISBN:
- 9780814788561
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814741030.003.0006
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines competing conceptions of equality in American constitutional law. It begins with an overview of the case of four white members of Duke University's lacrosse team who were ...
More
This chapter examines competing conceptions of equality in American constitutional law. It begins with an overview of the case of four white members of Duke University's lacrosse team who were accused of raping an African American stripper, as well as its significance to the constitutional meaning of “equal protection of the laws.” It then considers two competing notions of the meaning of “equality,” “process equality” and “outcome equality,” before turning to a discussion of affirmative action in colleges and universities. It also explores the constitutional test for gender discrimination by citing Supreme Court rulings in cases such as Mississippi University for Women v. Hogan (1982) and United States v. Virginia (1996).
Less
This chapter examines competing conceptions of equality in American constitutional law. It begins with an overview of the case of four white members of Duke University's lacrosse team who were accused of raping an African American stripper, as well as its significance to the constitutional meaning of “equal protection of the laws.” It then considers two competing notions of the meaning of “equality,” “process equality” and “outcome equality,” before turning to a discussion of affirmative action in colleges and universities. It also explores the constitutional test for gender discrimination by citing Supreme Court rulings in cases such as Mississippi University for Women v. Hogan (1982) and United States v. Virginia (1996).
J. Harvie Wilkinson
- Published in print:
- 2012
- Published Online:
- April 2015
- ISBN:
- 9780199846016
- eISBN:
- 9780190260040
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:osobl/9780199846016.001.0001
- Subject:
- Law, Constitutional and Administrative Law
American constitutional law has undergone a transformation. Issues once left to the people have increasingly become the province of the courts. Subjects as diverse as abortion rights and firearms ...
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American constitutional law has undergone a transformation. Issues once left to the people have increasingly become the province of the courts. Subjects as diverse as abortion rights and firearms regulations, health care reform, and counterterrorism efforts, not to mention a millennial presidential election, are more and more the domain of judges. What sparked this development? The book argues that America's most brilliant legal minds have launched a set of cosmic constitutional theories that, for all their value, are undermining self-governance. Thinkers as diverse as Justices William Brennan and Antonin Scalia, Professor John Hart Ely, Judges Robert Bork, and Richard Posner, have all produced seminal interpretations of the U.S. Founding document, but ones that promise to imbue courts with unprecedented powers. The book argues that they will slowly erode the role of representative institutions in America and leave U.S. children bereft of democratic liberty. The loser in all the theoretical fireworks is the old and honorable tradition of judicial restraint. The judicial modesty once practiced by Learned Hand, John Harlan, and Oliver Wendell Holmes has given way to competing schools of liberal and conservative activism seeking sanctuary in Living Constitutionalism, Originalism, Process Theory, or the supposedly anti-theoretical creed of Pragmatism. Each of these seemingly disparate theories promises their followers an intellectually respectable route to congenial political outcomes from the bench. The book calls for a plainer, simpler, self-disciplined commitment to judicial restraint and democratic governance, a course that alas may be impossible so long as the cosmic constitutionalists so dominate contemporary legal thought.Less
American constitutional law has undergone a transformation. Issues once left to the people have increasingly become the province of the courts. Subjects as diverse as abortion rights and firearms regulations, health care reform, and counterterrorism efforts, not to mention a millennial presidential election, are more and more the domain of judges. What sparked this development? The book argues that America's most brilliant legal minds have launched a set of cosmic constitutional theories that, for all their value, are undermining self-governance. Thinkers as diverse as Justices William Brennan and Antonin Scalia, Professor John Hart Ely, Judges Robert Bork, and Richard Posner, have all produced seminal interpretations of the U.S. Founding document, but ones that promise to imbue courts with unprecedented powers. The book argues that they will slowly erode the role of representative institutions in America and leave U.S. children bereft of democratic liberty. The loser in all the theoretical fireworks is the old and honorable tradition of judicial restraint. The judicial modesty once practiced by Learned Hand, John Harlan, and Oliver Wendell Holmes has given way to competing schools of liberal and conservative activism seeking sanctuary in Living Constitutionalism, Originalism, Process Theory, or the supposedly anti-theoretical creed of Pragmatism. Each of these seemingly disparate theories promises their followers an intellectually respectable route to congenial political outcomes from the bench. The book calls for a plainer, simpler, self-disciplined commitment to judicial restraint and democratic governance, a course that alas may be impossible so long as the cosmic constitutionalists so dominate contemporary legal thought.
Rodney A. Smolla
- Published in print:
- 2011
- Published Online:
- March 2016
- ISBN:
- 9780814741030
- eISBN:
- 9780814788561
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814741030.003.0004
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines the distinction between rights and privileges in American constitutional law and how it continues to exert a strong intuitive appeal on higher education. It first considers the ...
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This chapter examines the distinction between rights and privileges in American constitutional law and how it continues to exert a strong intuitive appeal on higher education. It first considers the intellectual contributions of Justice Oliver Wendell Holmes to the distinction between rights and privileges before turning to a discussion of the doctrine of “unconstitutional conditions” and how it has evolved as a partial restraint on the right–privilege argument. It then explores the relevance of the right–privilege distinction to the issue of financial assistance, one of the principal vehicles by which governments at the federal and state level seek to force universities and colleges to conform to norms imposed by the government. It also analyzes how the right–privilege distinction comes into play in disputes involving government aid and religion and concludes by noting the interrelationships among the notion of the living Constitution, the division between the public and private sphere, the right–privilege distinction, the ideal of ordered liberty, competing conceptions of equality, and the system of checks and balances.Less
This chapter examines the distinction between rights and privileges in American constitutional law and how it continues to exert a strong intuitive appeal on higher education. It first considers the intellectual contributions of Justice Oliver Wendell Holmes to the distinction between rights and privileges before turning to a discussion of the doctrine of “unconstitutional conditions” and how it has evolved as a partial restraint on the right–privilege argument. It then explores the relevance of the right–privilege distinction to the issue of financial assistance, one of the principal vehicles by which governments at the federal and state level seek to force universities and colleges to conform to norms imposed by the government. It also analyzes how the right–privilege distinction comes into play in disputes involving government aid and religion and concludes by noting the interrelationships among the notion of the living Constitution, the division between the public and private sphere, the right–privilege distinction, the ideal of ordered liberty, competing conceptions of equality, and the system of checks and balances.
Rodney A. Smolla
- Published in print:
- 2011
- Published Online:
- March 2016
- ISBN:
- 9780814741030
- eISBN:
- 9780814788561
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814741030.003.0004
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines the distinction between rights and privileges in American constitutional law and how it continues to exert a strong intuitive appeal on higher education. It first considers the ...
More
This chapter examines the distinction between rights and privileges in American constitutional law and how it continues to exert a strong intuitive appeal on higher education. It first considers the intellectual contributions of Justice Oliver Wendell Holmes to the distinction between rights and privileges before turning to a discussion of the doctrine of “unconstitutional conditions” and how it has evolved as a partial restraint on the right–privilege argument. It then explores the relevance of the right–privilege distinction to the issue of financial assistance, one of the principal vehicles by which governments at the federal and state level seek to force universities and colleges to conform to norms imposed by the government. It also analyzes how the right–privilege distinction comes into play in disputes involving government aid and religion and concludes by noting the interrelationships among the notion of the living Constitution, the division between the public and private sphere, the right–privilege distinction, the ideal of ordered liberty, competing conceptions of equality, and the system of checks and balances.
Less
This chapter examines the distinction between rights and privileges in American constitutional law and how it continues to exert a strong intuitive appeal on higher education. It first considers the intellectual contributions of Justice Oliver Wendell Holmes to the distinction between rights and privileges before turning to a discussion of the doctrine of “unconstitutional conditions” and how it has evolved as a partial restraint on the right–privilege argument. It then explores the relevance of the right–privilege distinction to the issue of financial assistance, one of the principal vehicles by which governments at the federal and state level seek to force universities and colleges to conform to norms imposed by the government. It also analyzes how the right–privilege distinction comes into play in disputes involving government aid and religion and concludes by noting the interrelationships among the notion of the living Constitution, the division between the public and private sphere, the right–privilege distinction, the ideal of ordered liberty, competing conceptions of equality, and the system of checks and balances.
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.
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/9780199846016.003.0003
- Subject:
- Law, Constitutional and Administrative Law
This chapter analyzes Judge Robert Bork's theory of originalism. It argues that originalism, despite its importance in constitutional adjudication, suffers from that all-too-common infirmity of ...
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This chapter analyzes Judge Robert Bork's theory of originalism. It argues that originalism, despite its importance in constitutional adjudication, suffers from that all-too-common infirmity of cosmic constitutional theory: a lack of judicial restraint. In the case of originalism, this failing assumes almost a tragic dimension, because more than any other theory, it tried so earnestly and so hard to be an exemplar of the modest virtues.Less
This chapter analyzes Judge Robert Bork's theory of originalism. It argues that originalism, despite its importance in constitutional adjudication, suffers from that all-too-common infirmity of cosmic constitutional theory: a lack of judicial restraint. In the case of originalism, this failing assumes almost a tragic dimension, because more than any other theory, it tried so earnestly and so hard to be an exemplar of the modest virtues.
Marc Jonathan Blitz
- Published in print:
- 2016
- Published Online:
- August 2016
- ISBN:
- 9780199396818
- eISBN:
- 9780199396825
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199396818.003.0018
- Subject:
- Philosophy, General, Moral Philosophy
Free speech law allows us to enhance our thinking with language and various forms of artistic expression. We might, for example, enhance our memories with note taking or enhance our mental operations ...
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Free speech law allows us to enhance our thinking with language and various forms of artistic expression. We might, for example, enhance our memories with note taking or enhance our mental operations with instructional videos or computer games. Should constitutional protection for cognitive enhancement go further to cover medical technologies we use to enhance our thinking? Focusing on American constitutional law, this chapter argues that it should. To be sure, unlike the realm of language, where erroneous or noxious beliefs and opinions are tolerated, the realm of medicine is one where the state cannot permit untrammeled experimentation and error. But the U.S. Constitution’s protection for our mental autonomy does not simply vanish in environments where government must closely monitor and regulate activity in the interest of health and safety. It does and should instead take a form that is compatible with such health and safety protection.Less
Free speech law allows us to enhance our thinking with language and various forms of artistic expression. We might, for example, enhance our memories with note taking or enhance our mental operations with instructional videos or computer games. Should constitutional protection for cognitive enhancement go further to cover medical technologies we use to enhance our thinking? Focusing on American constitutional law, this chapter argues that it should. To be sure, unlike the realm of language, where erroneous or noxious beliefs and opinions are tolerated, the realm of medicine is one where the state cannot permit untrammeled experimentation and error. But the U.S. Constitution’s protection for our mental autonomy does not simply vanish in environments where government must closely monitor and regulate activity in the interest of health and safety. It does and should instead take a form that is compatible with such health and safety protection.
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/9780199846016.003.0004
- Subject:
- Law, Constitutional and Administrative Law
This chapter analyzes the theory of John Hart Ely. Starting from the premise that the debate between living constitutionalism and originalism rests on a “false dichotomy,” Ely offers the seductive ...
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This chapter analyzes the theory of John Hart Ely. Starting from the premise that the debate between living constitutionalism and originalism rests on a “false dichotomy,” Ely offers the seductive promise of a third way: a theory of constitutional interpretation that is equally a theory of judicial restraint. Under this theory, judges should simply stop scrutinizing the substantive outcomes of the legislative process and instead focus solely on the process itself, invalidating laws that clog the arteries of political change or discriminate against minorities without enough political clout to make their voices heard. The chapter argues that like all cosmic constitutional promises, Ely's comes up short. Rather than eschewing value judgments, his theory requires judges to make substantive determinations about the nature of American democracy and the wisdom of law. And once judges begin making these value choices, restraint goes out the window.Less
This chapter analyzes the theory of John Hart Ely. Starting from the premise that the debate between living constitutionalism and originalism rests on a “false dichotomy,” Ely offers the seductive promise of a third way: a theory of constitutional interpretation that is equally a theory of judicial restraint. Under this theory, judges should simply stop scrutinizing the substantive outcomes of the legislative process and instead focus solely on the process itself, invalidating laws that clog the arteries of political change or discriminate against minorities without enough political clout to make their voices heard. The chapter argues that like all cosmic constitutional promises, Ely's comes up short. Rather than eschewing value judgments, his theory requires judges to make substantive determinations about the nature of American democracy and the wisdom of law. And once judges begin making these value choices, restraint goes out the window.
