George P. Fletcher
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780195156287
- eISBN:
- 9780199872169
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195156285.001.0001
- Subject:
- Political Science, American Politics
This book asserts that the Civil War marks the end of one era of American legal history, and the beginning of another. Abraham Lincoln's famous Gettysberg Address is viewed as the beginning of a new ...
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This book asserts that the Civil War marks the end of one era of American legal history, and the beginning of another. Abraham Lincoln's famous Gettysberg Address is viewed as the beginning of a new kind of “covert” constitutional law – one with a stronger emphasis on equality in the wake of the abolition of slavery – which was legally established in the Amendments made to the U.S. Constitution between 1865 and 1870. The author asserts that the influence of this “secret constitution”, which has varied in degree from Reconstruction to the present day, is visible in the rulings of the Supreme Court on issues hinging on personal freedom, equality, and discrimination.Less
This book asserts that the Civil War marks the end of one era of American legal history, and the beginning of another. Abraham Lincoln's famous Gettysberg Address is viewed as the beginning of a new kind of “covert” constitutional law – one with a stronger emphasis on equality in the wake of the abolition of slavery – which was legally established in the Amendments made to the U.S. Constitution between 1865 and 1870. The author asserts that the influence of this “secret constitution”, which has varied in degree from Reconstruction to the present day, is visible in the rulings of the Supreme Court on issues hinging on personal freedom, equality, and discrimination.
Jan Zielonka
- Published in print:
- 2006
- Published Online:
- May 2006
- ISBN:
- 9780199292219
- eISBN:
- 9780191603754
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199292213.001.0001
- Subject:
- Political Science, European Union
This book seeks to comprehend the evolving nature of the European Union following the fall of the Berlin Wall and the failure of the European Constitution. Its prime focus is the last wave of ...
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This book seeks to comprehend the evolving nature of the European Union following the fall of the Berlin Wall and the failure of the European Constitution. Its prime focus is the last wave of enlargement which has profoundly transformed the EU. Although there are many parallels between the European integration process and state-building processes, the Union is not anything like a Westphalian superstate. The new emerging polity resembles a kind of neo-medieval empire with a polycentric system of government, multiple and overlapping jurisdictions, striking cultural and economic heterogeneity, fuzzy borders, and divided sovereignty. The book spells out the origin, the shape, and the implications of this empire. It suggests a novel way of thinking about the European Union and the process of European integration, showing “two Europes” coming together following the end of the Cold War. It proposes a system of economic and democratic governance that meets the ever greater challenges of modernization, interdependence, and globalization. It identifies the most plausible scenario of promoting peaceful change in Europe and beyond. It argues that mainstream thinking about European integration is based on mistaken statist assumptions, and suggests more effective and legitimate ways of governing Europe than through the adoption of a European Constitution, creation of a European army, or introduction of a European social model. The book covers many fields from politics and economics to foreign affairs and security. It analyzes developments in both Eastern and Western Europe, and gives ample room for both theoretical and empirical considerations.Less
This book seeks to comprehend the evolving nature of the European Union following the fall of the Berlin Wall and the failure of the European Constitution. Its prime focus is the last wave of enlargement which has profoundly transformed the EU. Although there are many parallels between the European integration process and state-building processes, the Union is not anything like a Westphalian superstate. The new emerging polity resembles a kind of neo-medieval empire with a polycentric system of government, multiple and overlapping jurisdictions, striking cultural and economic heterogeneity, fuzzy borders, and divided sovereignty. The book spells out the origin, the shape, and the implications of this empire. It suggests a novel way of thinking about the European Union and the process of European integration, showing “two Europes” coming together following the end of the Cold War. It proposes a system of economic and democratic governance that meets the ever greater challenges of modernization, interdependence, and globalization. It identifies the most plausible scenario of promoting peaceful change in Europe and beyond. It argues that mainstream thinking about European integration is based on mistaken statist assumptions, and suggests more effective and legitimate ways of governing Europe than through the adoption of a European Constitution, creation of a European army, or introduction of a European social model. The book covers many fields from politics and economics to foreign affairs and security. It analyzes developments in both Eastern and Western Europe, and gives ample room for both theoretical and empirical considerations.
Frank Prochaska
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199640614
- eISBN:
- 9780191738678
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199640614.001.0001
- Subject:
- History, British and Irish Modern History, American History: 19th Century
This book is a survey of a wide range of British opinion on the United States in the nineteenth century and highlights the views of John Stuart Mill, Walter Bagehot, Sir Henry Maine, and James Bryce, ...
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This book is a survey of a wide range of British opinion on the United States in the nineteenth century and highlights the views of John Stuart Mill, Walter Bagehot, Sir Henry Maine, and James Bryce, who wrote extensively on American government and society. The Victorians made a memorable contribution to the ongoing debate over the character and origins of democracy through their examination of a host of issues, including the role of the Founding Fathers, the American Constitution and its relationship to the British Constitution, slavery, the Supreme Court, the Presidency, the spoils system, and party politics. Their trenchant commentary punctures several popular American assumptions, not least the idea of exceptionalism. To Victorian commentators, the bonds of kinship, language, law, and language were of great significance; and while they did not see the United States as having a unique destiny, they rallied to Anglo-Saxon exceptionalism, which reflected their sense of a shared transatlantic history. Their commentary remains remarkably prescient, if only because the American government retains so much of its eighteenth-century character.Less
This book is a survey of a wide range of British opinion on the United States in the nineteenth century and highlights the views of John Stuart Mill, Walter Bagehot, Sir Henry Maine, and James Bryce, who wrote extensively on American government and society. The Victorians made a memorable contribution to the ongoing debate over the character and origins of democracy through their examination of a host of issues, including the role of the Founding Fathers, the American Constitution and its relationship to the British Constitution, slavery, the Supreme Court, the Presidency, the spoils system, and party politics. Their trenchant commentary punctures several popular American assumptions, not least the idea of exceptionalism. To Victorian commentators, the bonds of kinship, language, law, and language were of great significance; and while they did not see the United States as having a unique destiny, they rallied to Anglo-Saxon exceptionalism, which reflected their sense of a shared transatlantic history. Their commentary remains remarkably prescient, if only because the American government retains so much of its eighteenth-century character.
Max. M Edling
- Published in print:
- 2003
- Published Online:
- January 2005
- ISBN:
- 9780195148701
- eISBN:
- 9780199835096
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195148703.001.0001
- Subject:
- Political Science, American Politics
In this new interpretation of America's origins, the author argues that during the Constitutional debates, the Federalists were primarily concerned with building a state able to act vigorously in ...
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In this new interpretation of America's origins, the author argues that during the Constitutional debates, the Federalists were primarily concerned with building a state able to act vigorously in defense of American national interests. By transferring the powers of war making and resource extraction from states to the national government, the US Constitution created a nation‐state invested with all the important powers of Europe's eighteenth‐century “fiscal‐military states.” However, the political traditions and institutions of America, whose people had a deeply ingrained distrust of unduly concentrated authority, were incompatible with a strong centralized government based on the European pattern. To secure the adoption of the Constitution, the Federalists needed to build a very different state – they had to accommodate the formation of a powerful national government to the strong current of anti‐statism in the American political tradition. They did so by designing an administration that would be powerful in times of crisis, but would make limited demands on citizens and entailed sharp restrictions on the physical presence of the national government in society. The Constitution was the Federalists’ promise of the benefits of government without its costs – statecraft rather than strong central authority as the solution to governing. The book takes advantage of a newly published edition of the constitutional debates in recovering a neglected strand of Federalist argument, and making a case for rethinking the formation of the federal American state. It is arranged in three main parts: I. Interpreting the Debate over Ratification (four chapters); II. Military Powers (five chapters); and III. Fiscal Powers (five chapters).Less
In this new interpretation of America's origins, the author argues that during the Constitutional debates, the Federalists were primarily concerned with building a state able to act vigorously in defense of American national interests. By transferring the powers of war making and resource extraction from states to the national government, the US Constitution created a nation‐state invested with all the important powers of Europe's eighteenth‐century “fiscal‐military states.” However, the political traditions and institutions of America, whose people had a deeply ingrained distrust of unduly concentrated authority, were incompatible with a strong centralized government based on the European pattern. To secure the adoption of the Constitution, the Federalists needed to build a very different state – they had to accommodate the formation of a powerful national government to the strong current of anti‐statism in the American political tradition. They did so by designing an administration that would be powerful in times of crisis, but would make limited demands on citizens and entailed sharp restrictions on the physical presence of the national government in society. The Constitution was the Federalists’ promise of the benefits of government without its costs – statecraft rather than strong central authority as the solution to governing. The book takes advantage of a newly published edition of the constitutional debates in recovering a neglected strand of Federalist argument, and making a case for rethinking the formation of the federal American state. It is arranged in three main parts: I. Interpreting the Debate over Ratification (four chapters); II. Military Powers (five chapters); and III. Fiscal Powers (five chapters).
Max. M Edling
- Published in print:
- 2003
- Published Online:
- January 2005
- ISBN:
- 9780195148701
- eISBN:
- 9780199835096
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195148703.003.0002
- Subject:
- Political Science, American Politics
Argues that the role of debate in the struggle over ratification was significant to the adoption of the US Constitution because public debate was a necessary step in the decision‐making process ...
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Argues that the role of debate in the struggle over ratification was significant to the adoption of the US Constitution because public debate was a necessary step in the decision‐making process leading to its ratification. It was a necessary step because adoption would not have been legitimate without the possibility of public debate, but the debate was also significant in another way: it provided the first widely shared and detailed interpretation of important clauses of the Constitution. This original elucidation of the meaning of the Constitution later served as the point of origin for constitutional interpretation in the political life of the early republic – an authoritative source for establishing the meaning of the Constitution.Less
Argues that the role of debate in the struggle over ratification was significant to the adoption of the US Constitution because public debate was a necessary step in the decision‐making process leading to its ratification. It was a necessary step because adoption would not have been legitimate without the possibility of public debate, but the debate was also significant in another way: it provided the first widely shared and detailed interpretation of important clauses of the Constitution. This original elucidation of the meaning of the Constitution later served as the point of origin for constitutional interpretation in the political life of the early republic – an authoritative source for establishing the meaning of the Constitution.
George P. Fletcher
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780195156287
- eISBN:
- 9780199872169
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195156285.003.0002
- Subject:
- Political Science, American Politics
This chapter discusses the influence of religious ideas on legal values and experience, citing examples from religious law (especially Jewish law and the Talmud), the French civil code, and the ...
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This chapter discusses the influence of religious ideas on legal values and experience, citing examples from religious law (especially Jewish law and the Talmud), the French civil code, and the German Constitution. The idea of law as a path to redemption for a people or nation is examined. The author points out that he considers the “original intent” of the framers of the Constitution (and its subsequent Amendments) irrelevant for the purposes of this book's analysis.Less
This chapter discusses the influence of religious ideas on legal values and experience, citing examples from religious law (especially Jewish law and the Talmud), the French civil code, and the German Constitution. The idea of law as a path to redemption for a people or nation is examined. The author points out that he considers the “original intent” of the framers of the Constitution (and its subsequent Amendments) irrelevant for the purposes of this book's analysis.
Alan M. Dershowitz
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780195158076
- eISBN:
- 9780199869848
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195158075.003.0003
- Subject:
- Political Science, American Politics
Gives an account of the final decision of the US Supreme Court on the Florida vote in the (Bush vs Gore) US presidential election of 2000. Includes discussion of the deliberations and decisions of ...
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Gives an account of the final decision of the US Supreme Court on the Florida vote in the (Bush vs Gore) US presidential election of 2000. Includes discussion of the deliberations and decisions of the Florida Supreme Court in the case of the recount in that state. The main sections of the chapter are: Imperfect Ballots and the Misuse of the Equal‐Protection Clause; Discerning Intent; The Majority's Curious Use of Precedent to Reach Its Result — the inability of the majority of the Supreme Court to point to any case that supported its questionable interpretation of the equal‐protection clause; Of Fundamental Rights, Equal Protection, and Victims; Limited Circumstances — the statement by the Supreme Court that their consideration was limited to the 2000 US presidential election; The Article II Argument — by the US Supreme Court that the Florida Supreme Court had usurped the constitutional authority of the legislature; and Justification by National Crisis.Less
Gives an account of the final decision of the US Supreme Court on the Florida vote in the (Bush vs Gore) US presidential election of 2000. Includes discussion of the deliberations and decisions of the Florida Supreme Court in the case of the recount in that state. The main sections of the chapter are: Imperfect Ballots and the Misuse of the Equal‐Protection Clause; Discerning Intent; The Majority's Curious Use of Precedent to Reach Its Result — the inability of the majority of the Supreme Court to point to any case that supported its questionable interpretation of the equal‐protection clause; Of Fundamental Rights, Equal Protection, and Victims; Limited Circumstances — the statement by the Supreme Court that their consideration was limited to the 2000 US presidential election; The Article II Argument — by the US Supreme Court that the Florida Supreme Court had usurped the constitutional authority of the legislature; and Justification by National Crisis.
Jeffrey S. Lantis
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199535019
- eISBN:
- 9780191715952
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199535019.003.0008
- Subject:
- Political Science, Comparative Politics, International Relations and Politics
The Treaty Establishing a Constitution for Europe (or European Constitution) provided a plan for deepening European integration with a centralization of power in Brussels. Supporters believed that it ...
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The Treaty Establishing a Constitution for Europe (or European Constitution) provided a plan for deepening European integration with a centralization of power in Brussels. Supporters believed that it offered the promise of greater political, economic, and social unity for Europe in the twenty-first century. French and German government leaders hailed the advent of the treaty as a “moment of destiny” for the continent. While the German government ratified the treaty quickly, it generated serious controversy in France. Voters rejected the treaty in a national referendum on June 1, 2005, dealing a serious blow to progress on European integration.Less
The Treaty Establishing a Constitution for Europe (or European Constitution) provided a plan for deepening European integration with a centralization of power in Brussels. Supporters believed that it offered the promise of greater political, economic, and social unity for Europe in the twenty-first century. French and German government leaders hailed the advent of the treaty as a “moment of destiny” for the continent. While the German government ratified the treaty quickly, it generated serious controversy in France. Voters rejected the treaty in a national referendum on June 1, 2005, dealing a serious blow to progress on European integration.
Gabor S. Boritt (ed.)
- Published in print:
- 1994
- Published Online:
- October 2011
- ISBN:
- 9780195089110
- eISBN:
- 9780199853830
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195089110.001.0001
- Subject:
- History, American History: 19th Century
This book looks at how Lincoln confronted the central issues of the Civil War era, throwing new light on the revolutionary changes he helped usher in. The book explores the issue of ...
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This book looks at how Lincoln confronted the central issues of the Civil War era, throwing new light on the revolutionary changes he helped usher in. The book explores the issue of self-determination, illuminating Lincoln's views and comparing the South's struggle for independence to others in history (including the post-Soviet situation in Eastern Europe). One chapter offers a provocative comparison of how Lincoln and America's other outstanding war president, FDR, went beyond the limits of the Constitution in defense of the nation and freedom—as they understood them. Another chapter focuses on both the exhilarating moment of emancipation and its disappointing results. A further chapter traces Lincoln's transition from strident opponent of the Mexican War, to resolute war leader (“Destroy the rebel army,” were his terse orders), to speaking out for reconciliation (after Appomattox he exclaimed, “Enemies, never again must we repeat that word”). The next chapter compares the Civil War as a successful attempt at true national unification with the unifications of Italy, Germany, and even Switzerland (which waged a fraternal war not many years earlier). A later chapter provides an incisive look at the premonitions of Civil War that haunted the American republic since independence, including Lincoln's reluctance to accept war as a possibility. Finally, the book establishes once and for all Lincoln's brilliance as a national strategist.Less
This book looks at how Lincoln confronted the central issues of the Civil War era, throwing new light on the revolutionary changes he helped usher in. The book explores the issue of self-determination, illuminating Lincoln's views and comparing the South's struggle for independence to others in history (including the post-Soviet situation in Eastern Europe). One chapter offers a provocative comparison of how Lincoln and America's other outstanding war president, FDR, went beyond the limits of the Constitution in defense of the nation and freedom—as they understood them. Another chapter focuses on both the exhilarating moment of emancipation and its disappointing results. A further chapter traces Lincoln's transition from strident opponent of the Mexican War, to resolute war leader (“Destroy the rebel army,” were his terse orders), to speaking out for reconciliation (after Appomattox he exclaimed, “Enemies, never again must we repeat that word”). The next chapter compares the Civil War as a successful attempt at true national unification with the unifications of Italy, Germany, and even Switzerland (which waged a fraternal war not many years earlier). A later chapter provides an incisive look at the premonitions of Civil War that haunted the American republic since independence, including Lincoln's reluctance to accept war as a possibility. Finally, the book establishes once and for all Lincoln's brilliance as a national strategist.
Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.001.0001
- Subject:
- Law, Constitutional and Administrative Law
The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. This book argues that since the nation's founding, but especially ...
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The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. This book argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost. This book establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a “presumption of liberty” to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. It also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people. The book disputes the conventional wisdom, posing a powerful challenge to which others must now respond. This updated edition features an afterword with further reflections on individual popular sovereignty, originalist interpretation, judicial engagement, and the gravitational force that original meaning has exerted on the Supreme Court in several recent cases.Less
The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. This book argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost. This book establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a “presumption of liberty” to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. It also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people. The book disputes the conventional wisdom, posing a powerful challenge to which others must now respond. This updated edition features an afterword with further reflections on individual popular sovereignty, originalist interpretation, judicial engagement, and the gravitational force that original meaning has exerted on the Supreme Court in several recent cases.
Sanford Levinson
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691152400
- eISBN:
- 9781400839872
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691152400.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This book examines the “constitutional faith” that has, since 1788, been a central component of American “civil religion.” By taking seriously the parallel between wholehearted acceptance of the ...
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This book examines the “constitutional faith” that has, since 1788, been a central component of American “civil religion.” By taking seriously the parallel between wholehearted acceptance of the Constitution and religious faith, the book opens up a host of intriguing questions about what it means to be American. While some view the Constitution as the central component of an American religion that serves to unite the social order, the book maintains that its sacred role can result in conflict, fragmentation, and even war. This book takes the view that the Constitution’s value lies in the realm of the discourse it sustains: a uniquely American form of political rhetoric that allows citizens to grapple with every important public issue imaginable. A new afterword looks at the deepening of constitutional worship and attributes the current widespread frustrations with the government to the static nature of the Constitution.Less
This book examines the “constitutional faith” that has, since 1788, been a central component of American “civil religion.” By taking seriously the parallel between wholehearted acceptance of the Constitution and religious faith, the book opens up a host of intriguing questions about what it means to be American. While some view the Constitution as the central component of an American religion that serves to unite the social order, the book maintains that its sacred role can result in conflict, fragmentation, and even war. This book takes the view that the Constitution’s value lies in the realm of the discourse it sustains: a uniquely American form of political rhetoric that allows citizens to grapple with every important public issue imaginable. A new afterword looks at the deepening of constitutional worship and attributes the current widespread frustrations with the government to the static nature of the Constitution.
James D. Savage
- Published in print:
- 2007
- Published Online:
- October 2011
- ISBN:
- 9780199238699
- eISBN:
- 9780191696770
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199238699.003.0007
- Subject:
- Political Science, European Union, Political Economy
This chapter considers the question of whether the Maastricht Treaty's surveillance process is sustainable despite member state noncompliant behaviour. The EU's answer to this question is one of ...
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This chapter considers the question of whether the Maastricht Treaty's surveillance process is sustainable despite member state noncompliant behaviour. The EU's answer to this question is one of reaffirmation and accommodation. During the summer of 2004, two events occurred that significantly affect the Treaty's budgetary surveillance. First, on June 17 and 18, the EU Intergovernmental Council, consisting of the heads of government of the member states and acceding states, unanimously adopted the draft text of the new European Constitution, Europe's latest grand bargain. Second, a similar reaffirmation occurred on July 13, 2004, when the European Court of Justice issued its judgement upholding the EC's claim that the Council of Economic and Finance Ministers exceeded its authority in declaring the Maastricht Treaty's excessive deficit procedure in ‘abeyance’.Less
This chapter considers the question of whether the Maastricht Treaty's surveillance process is sustainable despite member state noncompliant behaviour. The EU's answer to this question is one of reaffirmation and accommodation. During the summer of 2004, two events occurred that significantly affect the Treaty's budgetary surveillance. First, on June 17 and 18, the EU Intergovernmental Council, consisting of the heads of government of the member states and acceding states, unanimously adopted the draft text of the new European Constitution, Europe's latest grand bargain. Second, a similar reaffirmation occurred on July 13, 2004, when the European Court of Justice issued its judgement upholding the EC's claim that the Council of Economic and Finance Ministers exceeded its authority in declaring the Maastricht Treaty's excessive deficit procedure in ‘abeyance’.
Sotirios A. Barber and James E. Fleming
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780195328578
- eISBN:
- 9780199855339
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195328578.001.0001
- Subject:
- Law, Constitutional and Administrative Law
What is the nature of the US Constitution? How ought it to be interpreted? Ronald Dworkin famously argued that fidelity in interpreting the Constitution as written calls for a fusion of ...
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What is the nature of the US Constitution? How ought it to be interpreted? Ronald Dworkin famously argued that fidelity in interpreting the Constitution as written calls for a fusion of constitutional law and moral philosophy. Sotirios A. Barber and James E. Fleming take up that call, arguing for a philosophic approach to constitutional interpretation. In doing so, they systematically criticize competing approaches — textualism, consensualism, originalism, structuralism, doctrinalism, minimalism, and pragmatism — that aim and claim to avoid a philosophic approach. They show that none can responsibly avoid philosophic reflection and choice in interpreting the Constitution. At the same time, Barber and Fleming demonstrate that a philosophic approach, properly understood, does not turn its back on traditional sources of constitutional meaning. It is in fact the most defensible approach to constitutional text and history. They emphasize that the philosophic approach is a fusion of approaches. Within such a fusion, interpreters would view text, intentions, consensus, structures, and doctrines not as alternatives to but as sites of philosophic reflection and choice about the best understanding of our constitutional commitments. Nor does the philosophic approach demand that judges and other interpreters of the Constitution become philosophers. It demands only that interpreters think self-critically and take public responsibility for the moral choices that they inevitably make in faithfully interpreting the Constitution. The book offers both a succinct overview of approaches to constitutional interpretation and a powerful argument for a philosophic approach.Less
What is the nature of the US Constitution? How ought it to be interpreted? Ronald Dworkin famously argued that fidelity in interpreting the Constitution as written calls for a fusion of constitutional law and moral philosophy. Sotirios A. Barber and James E. Fleming take up that call, arguing for a philosophic approach to constitutional interpretation. In doing so, they systematically criticize competing approaches — textualism, consensualism, originalism, structuralism, doctrinalism, minimalism, and pragmatism — that aim and claim to avoid a philosophic approach. They show that none can responsibly avoid philosophic reflection and choice in interpreting the Constitution. At the same time, Barber and Fleming demonstrate that a philosophic approach, properly understood, does not turn its back on traditional sources of constitutional meaning. It is in fact the most defensible approach to constitutional text and history. They emphasize that the philosophic approach is a fusion of approaches. Within such a fusion, interpreters would view text, intentions, consensus, structures, and doctrines not as alternatives to but as sites of philosophic reflection and choice about the best understanding of our constitutional commitments. Nor does the philosophic approach demand that judges and other interpreters of the Constitution become philosophers. It demands only that interpreters think self-critically and take public responsibility for the moral choices that they inevitably make in faithfully interpreting the Constitution. The book offers both a succinct overview of approaches to constitutional interpretation and a powerful argument for a philosophic approach.
Iain McLean
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199546954
- eISBN:
- 9780191720031
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546954.001.0001
- Subject:
- Political Science, Comparative Politics, UK Politics
In this provocative new study, Iain McLean argues that the traditional story of the British constitution does not make sense. It purports to be both positive and normative: that is, to describe both ...
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In this provocative new study, Iain McLean argues that the traditional story of the British constitution does not make sense. It purports to be both positive and normative: that is, to describe both how people actually behave and how they ought to behave. In fact, it fails to do either; it is not a correct description and it has no persuasive force. The book goes on to offer a reasoned alternative. The position that still dominates the field of constitutional law is that of parliamentary sovereignty (or supremacy). According to this view, the supreme lawgiver in the United Kingdom is Parliament. Some writers in this tradition go on to insist that Parliament in turn derives its authority from the people, because the people elect Parliament. An obvious problem with this view is that Parliament, to a lawyer, comprises three houses: monarch, Lords, and Commons. The people elect only one of those three houses. This book aims to show, contrary to the prevailing view, that the United Kingdom exists by virtue of a constitutional contract between two previously independent states. Professor McLean argues that the work of the influential constitutional theorist A. V. Dicey has little to offer those who really want to understand the nature of the constitution. Instead, greater understanding can be gleaned from considering the ‘veto plays’ and ‘credible threats’ available to politicians since 1707. He suggests that the idea the people are sovereign dates back to the seventeenth century (may be fourteenth century in Scotland), but has gone underground in English constitutional writing. He goes on to show that devolution and the United Kingdom's relationship with the rest of Europe have taken the United Kingdom along a constitutionalist road since 1972, and perhaps since 1920. He concludes that no intellectually defensible case can be made for retaining an unelected house of Parliament, an unelected head of state, or an established church. This book will be an essential reading for political scientists, constitutional lawyers, historians, politicians, and the like.Less
In this provocative new study, Iain McLean argues that the traditional story of the British constitution does not make sense. It purports to be both positive and normative: that is, to describe both how people actually behave and how they ought to behave. In fact, it fails to do either; it is not a correct description and it has no persuasive force. The book goes on to offer a reasoned alternative. The position that still dominates the field of constitutional law is that of parliamentary sovereignty (or supremacy). According to this view, the supreme lawgiver in the United Kingdom is Parliament. Some writers in this tradition go on to insist that Parliament in turn derives its authority from the people, because the people elect Parliament. An obvious problem with this view is that Parliament, to a lawyer, comprises three houses: monarch, Lords, and Commons. The people elect only one of those three houses. This book aims to show, contrary to the prevailing view, that the United Kingdom exists by virtue of a constitutional contract between two previously independent states. Professor McLean argues that the work of the influential constitutional theorist A. V. Dicey has little to offer those who really want to understand the nature of the constitution. Instead, greater understanding can be gleaned from considering the ‘veto plays’ and ‘credible threats’ available to politicians since 1707. He suggests that the idea the people are sovereign dates back to the seventeenth century (may be fourteenth century in Scotland), but has gone underground in English constitutional writing. He goes on to show that devolution and the United Kingdom's relationship with the rest of Europe have taken the United Kingdom along a constitutionalist road since 1972, and perhaps since 1920. He concludes that no intellectually defensible case can be made for retaining an unelected house of Parliament, an unelected head of state, or an established church. This book will be an essential reading for political scientists, constitutional lawyers, historians, politicians, and the like.
Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.003.0016
- Subject:
- Law, Constitutional and Administrative Law
In this afterword, the author reflects on the lessons that he has learned since the publication of the book's first edition in 2004 from the realms of both constitutional scholarship and ...
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In this afterword, the author reflects on the lessons that he has learned since the publication of the book's first edition in 2004 from the realms of both constitutional scholarship and constitutional law. He highlights some areas where his thinking has developed since the book's original publication in ways that should be of interest to readers. These include individual popular sovereignty and presumed consent, whether the Constitution protected economic liberty, how judges can protect the rights retained by the people without identifying them, the empirical nature of the new originalism, the gravitational force of originalism, and the so-called “Constitution in Exile movement.” The author concludes by rejecting the notion that this book offers a “libertarian” interpretation of the Constitution.Less
In this afterword, the author reflects on the lessons that he has learned since the publication of the book's first edition in 2004 from the realms of both constitutional scholarship and constitutional law. He highlights some areas where his thinking has developed since the book's original publication in ways that should be of interest to readers. These include individual popular sovereignty and presumed consent, whether the Constitution protected economic liberty, how judges can protect the rights retained by the people without identifying them, the empirical nature of the new originalism, the gravitational force of originalism, and the so-called “Constitution in Exile movement.” The author concludes by rejecting the notion that this book offers a “libertarian” interpretation of the Constitution.
Iain McLean
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199546954
- eISBN:
- 9780191720031
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546954.003.0003
- Subject:
- Political Science, Comparative Politics, UK Politics
Veto players and win sets in a pluralitarian democracy, compared to those in a proportional regime; and in a unitary compared to a federal regime. Duverger's Law. Constitutional moments in the United ...
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Veto players and win sets in a pluralitarian democracy, compared to those in a proportional regime; and in a unitary compared to a federal regime. Duverger's Law. Constitutional moments in the United States. The unconstitutionality of the great constitutional changes there.Less
Veto players and win sets in a pluralitarian democracy, compared to those in a proportional regime; and in a unitary compared to a federal regime. Duverger's Law. Constitutional moments in the United States. The unconstitutionality of the great constitutional changes there.
Berthold Rittberger
- Published in print:
- 2005
- Published Online:
- July 2005
- ISBN:
- 9780199273423
- eISBN:
- 9780191602764
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199273421.003.0007
- Subject:
- Political Science, European Union
Analyses the developments from the Maastricht Treaty leading up to the approval of the Treaty establishing a Constitution for Europe. It is first shown that after adoption of the SEA, the role of ...
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Analyses the developments from the Maastricht Treaty leading up to the approval of the Treaty establishing a Constitution for Europe. It is first shown that after adoption of the SEA, the role of national parliaments in EU decision-making has become an ever more salient item on the agenda of the member states. Asks whether this ‘trend’ towards empowering national parliaments follows the same logic as the empowerment of the European Parliament. Furthermore, the chapter explains why the empowerment of national parliaments still lags behind that of its EU-level counterpart, the European Parliament.Less
Analyses the developments from the Maastricht Treaty leading up to the approval of the Treaty establishing a Constitution for Europe. It is first shown that after adoption of the SEA, the role of national parliaments in EU decision-making has become an ever more salient item on the agenda of the member states. Asks whether this ‘trend’ towards empowering national parliaments follows the same logic as the empowerment of the European Parliament. Furthermore, the chapter explains why the empowerment of national parliaments still lags behind that of its EU-level counterpart, the European Parliament.
Michael J. Gerhardt
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195150506
- eISBN:
- 9780199871131
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195150506.003.0006
- Subject:
- Political Science, American Politics
In this chapter Professor Gerhardt demonstrates that precedents end up influencing and contributing to constitutional law in many ways other than constraint, which is the predominant concern of ...
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In this chapter Professor Gerhardt demonstrates that precedents end up influencing and contributing to constitutional law in many ways other than constraint, which is the predominant concern of social scientists who study courts. These multiple functions include educating the public about constitutional law, shaping constitutional discourse in and outside of courts, implementing constitutional values, clarifying constitutional structure and history, resolving particular cases or controversies, and democratizing constitutional law.Less
In this chapter Professor Gerhardt demonstrates that precedents end up influencing and contributing to constitutional law in many ways other than constraint, which is the predominant concern of social scientists who study courts. These multiple functions include educating the public about constitutional law, shaping constitutional discourse in and outside of courts, implementing constitutional values, clarifying constitutional structure and history, resolving particular cases or controversies, and democratizing constitutional law.
Max. M Edling
- Published in print:
- 2003
- Published Online:
- January 2005
- ISBN:
- 9780195148701
- eISBN:
- 9780199835096
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195148703.003.0001
- Subject:
- Political Science, American Politics
The aim of this book is described as to search for answers as to why the US Constitution was adopted. Like most other studies of this topic, it focusses on the Federalist argument, although it also ...
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The aim of this book is described as to search for answers as to why the US Constitution was adopted. Like most other studies of this topic, it focusses on the Federalist argument, although it also takes the Antifederalist opposition into account. However, the conclusions reached deviate sharply from the mainstream interpretation of the Federalist persuasion in that the study aims to challenge the Madisonian interpretation of Federalism in two ways: it goes beyond the interpretation of The Federalist Papers of 1787–88 and James Madison's pre‐Convention writings to analyze a much broader sample of Federalist and Antifederalist writings; and based on this broader reading, it provides a new interpretation of what the Constitution and the Federalist argument were about. The major finding presented is that the Federalist argument was not a protoliberal call for minority rights and limited government but an argument about state formation or state building. The first two sections of the introduction discuss Madison's thoughts and writings on the Federalist dilemma, and the problems of the traditionalist interpretation of the Federalist position; the last two sections give an outline of the structure of the book and describe its intended audience.Less
The aim of this book is described as to search for answers as to why the US Constitution was adopted. Like most other studies of this topic, it focusses on the Federalist argument, although it also takes the Antifederalist opposition into account. However, the conclusions reached deviate sharply from the mainstream interpretation of the Federalist persuasion in that the study aims to challenge the Madisonian interpretation of Federalism in two ways: it goes beyond the interpretation of The Federalist Papers of 1787–88 and James Madison's pre‐Convention writings to analyze a much broader sample of Federalist and Antifederalist writings; and based on this broader reading, it provides a new interpretation of what the Constitution and the Federalist argument were about. The major finding presented is that the Federalist argument was not a protoliberal call for minority rights and limited government but an argument about state formation or state building. The first two sections of the introduction discuss Madison's thoughts and writings on the Federalist dilemma, and the problems of the traditionalist interpretation of the Federalist position; the last two sections give an outline of the structure of the book and describe its intended audience.
Max. M Edling
- Published in print:
- 2003
- Published Online:
- January 2005
- ISBN:
- 9780195148701
- eISBN:
- 9780199835096
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195148703.003.0003
- Subject:
- Political Science, American Politics
The first two sections of this chapter discuss the two main approaches to the analysis of the ratification debate over the US Constitution. Until the late 1960s, the predominant interpretation ...
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The first two sections of this chapter discuss the two main approaches to the analysis of the ratification debate over the US Constitution. Until the late 1960s, the predominant interpretation described the debate over ratification as a conflict between “aristocratic” and “democratic” ideals and interests, but at about that time, scholars began to shift to a second approach that used the terms “liberalism” and “classical republicanism” to account for ideological differences during the revolutionary era; this shift was also accompanied by a change in the interpreters’ concerns away from social struggle toward the study of the development of political ideas. The argument presented here is that the terminology so far favored by historians and political scientists has obscured important aspects of the ideological differences between the Federalists and their opponents because it has drawn attention away from the actual issues debated during the ratification struggle. This claim can be supported in different ways, but the approach used here is to look closely at what prominent interpreters say about the limits of their own interpretation, even though this it risks being unfair to the perspectives reviewed. The last two sections of the chapter present an approach that promises better to capture the essence of the ideological disagreement between the Federalists and the Antifederalists as presented in the debate over ratification, and suggest that the debate is best seen as neither about democracy nor about liberalism, but about state formation.Less
The first two sections of this chapter discuss the two main approaches to the analysis of the ratification debate over the US Constitution. Until the late 1960s, the predominant interpretation described the debate over ratification as a conflict between “aristocratic” and “democratic” ideals and interests, but at about that time, scholars began to shift to a second approach that used the terms “liberalism” and “classical republicanism” to account for ideological differences during the revolutionary era; this shift was also accompanied by a change in the interpreters’ concerns away from social struggle toward the study of the development of political ideas. The argument presented here is that the terminology so far favored by historians and political scientists has obscured important aspects of the ideological differences between the Federalists and their opponents because it has drawn attention away from the actual issues debated during the ratification struggle. This claim can be supported in different ways, but the approach used here is to look closely at what prominent interpreters say about the limits of their own interpretation, even though this it risks being unfair to the perspectives reviewed. The last two sections of the chapter present an approach that promises better to capture the essence of the ideological disagreement between the Federalists and the Antifederalists as presented in the debate over ratification, and suggest that the debate is best seen as neither about democracy nor about liberalism, but about state formation.
