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A Constitution Of Many Minds

Author: Cass R. Sunstein
Publisher: Princeton University Press
ISBN: 1400829925
Size: 58.16 MB
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The future of the U.S. Supreme Court hangs in the balance like never before. Will conservatives or liberals succeed in remaking the court in their own image? In A Constitution of Many Minds, acclaimed law scholar Cass Sunstein proposes a bold new way of interpreting the Constitution, one that respects the Constitution's text and history but also refuses to view the document as frozen in time. Exploring hot-button issues ranging from presidential power to same-sex relations to gun rights, Sunstein shows how the meaning of the Constitution is reestablished in every generation as new social commitments and ideas compel us to reassess our fundamental beliefs. He focuses on three approaches to the Constitution--traditionalism, which grounds the document's meaning in long-standing social practices, not necessarily in the views of the founding generation; populism, which insists that judges should respect contemporary public opinion; and cosmopolitanism, which looks at how foreign courts address constitutional questions, and which suggests that the meaning of the Constitution turns on what other nations do. Sunstein demonstrates that in all three contexts a "many minds" argument is at work--put simply, better decisions result when many points of view are considered. He makes sense of the intense debates surrounding these approaches, revealing their strengths and weaknesses, and sketches the contexts in which each provides a legitimate basis for interpreting the Constitution today. This book illuminates the underpinnings of constitutionalism itself, and shows that ours is indeed a Constitution, not of any particular generation, but of many minds.

Judicial Review In An Objective Legal System

Author: Tara Smith
Publisher: Cambridge University Press
ISBN: 1316404730
Size: 52.11 MB
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How should courts interpret the law? While all agree that courts must be objective, people differ sharply over what this demands in practice: fidelity to the text? To the will of the people? To certain moral ideals? In Judicial Review in an Objective Legal System, Tara Smith breaks through the false dichotomies inherent in dominant theories - various forms of originalism, living constitutionalism, and minimalism - to present a new approach to judicial review. She contends that we cannot assess judicial review in isolation from the larger enterprise of which it is a part. By providing careful clarification of both the function of the legal system as well as of objectivity itself, she produces a compelling, firmly grounded account of genuinely objective judicial review. Smith's innovative approach marks a welcome advance for anyone interested in legal objectivity and individual rights.

The Metaethics Of Constitutional Adjudication

Author: Bosko Tripkovic
Publisher: Oxford University Press
ISBN: 0192535609
Size: 66.32 MB
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In this book Bosko Tripkovic develops a theory of value-based arguments in constitutional adjudication. In contrast to the standard question of constitutional theory that asks whether the courts get moral answers wrong, it asks a more fundamental question of whether the courts get the morality itself wrong. Tripkovic argues for an antirealist conception of value -one that does not presuppose the existence of mind-independent moral truths- and accounts for the effect this ought to have on existing value-based arguments made by constitutional courts. The book identifies three dominant types of value-based arguments in comparative constitutional practice: arguments from constitutional identity, common sentiment, and universal reason, and explains why they fail as self-standing approaches to moral judgment. It then suggests that the appropriate moral judgments emerge from the dynamics between practical confidence, which denotes the inescapability of the self and the evaluative attitudes it entails, and reflection, which denotes the process of challenging and questioning these attitudes. The book applies the notions of confidence and reflection to constitutional reasoning and maintains that the moral inquiry of the constitutional court ought to depart from the emotive intuitions of the constitutional community and then challenge these intuitions through reflective exposure to different perspectives in order to better understand and develop the underlying constitutional identity. The book casts new light on common constitutional dilemmas and allows us to envisage new ways of resolving them.

Constitutional Dialogue In Common Law Asia

Author: Po Jen Yap
Publisher: OUP Oxford
ISBN: 019105593X
Size: 20.25 MB
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In a comprehensive examination of the constitutional systems of Hong Kong, Malaysia, and Singapore, Po Jen Yap contributes to a field that has traditionally focussed on Western jurisdictions. Drawing on the history and constitutional framework of these Asian law systems, this book examines the political structures and traditions that were inherited from the British colonial government and the major constitutional developments since decolonization. Yap examines the judicial crises that have occurred in each of the three jurisdictions and explores the development of sub-constitutional doctrines that allows the courts to preserve the right of the legislature to disagree with the courts' decisions using the ordinary political processes. The book focusses on how these novel judicial techniques can be applied to four core constitutional concerns: freedom of expression, freedom of religion, right to equality, and criminal due process rights. Each chapter examines one core topic and defends a model of dialogic judicial review that offers a compelling alternative to legislative or judicial supremacy.

Constitutional Redemption

Author: J. M. Balkin
Publisher: Harvard University Press
ISBN: 0674058747
Size: 48.78 MB
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Political constitutions are compromises with injustice. What makes the U.S. Constitution legitimate is Americans’ faith that the constitutional system can be made “a more perfect union.” Balkin argues that the American constitutional project is based in hope and a narrative of shared redemption, and its destiny is still over the horizon.

Our Lost Constitution

Author: Mike Lee
Publisher: Penguin
ISBN: 0143108409
Size: 23.45 MB
Format: PDF
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In Our Lost Constitution, Senator Mike Lee tells the dramatic, little-known stories behind six of the Constitution?s most indispensible provisions. He shows their rise. He shows their fall. And he makes vividly clear how nearly every abuse of federal power today is rooted in neglect of this Lost Constitution.

Does The Constitution Follow The Flag

Author: Kal Raustiala
Publisher: Oxford University Press
ISBN: 0199858179
Size: 10.68 MB
Format: PDF
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The Bush Administration has notoriously argued that detainees at Guantanamo do not enjoy constitutional rights because they are held outside American borders. But where do rules about territorial legal limits such as this one come from? Why does geography make a difference for what legal rules apply? Most people intuitively understand that location affects constitutional rights, but the legal and political basis for territorial jurisdiction is poorly understood. In this novel and accessible treatment of territoriality in American law and foreign policy, Kal Raustiala begins by tracing the history of the subject from its origins in post-revolutionary America to the Indian wars and overseas imperialism of the 19th century. He then takes the reader through the Cold War and the globalization era before closing with a powerful explanation of America's attempt to increase its extraterritorial power in the post-9/11 world. As American power has grown, our understanding of extraterritorial legal rights has expanded too, and Raustiala illuminates why America's assumptions about sovereignty and territory have changed. Throughout, he focuses on how the legal limits of territorial sovereignty have diminished to accommodate the expanding American empire, and addresses how such limits ought to look in the wake of Iraq, Afghanistan, and the war on terror. A timely and engaging narrative, Does the Constitution Follow the Flag? will change how we think about American territory, American law, and-ultimately-the changing nature of American power.

The Godless Constitution

Author: Isaac Kramnick
Publisher: W. W. Norton & Company
ISBN: 9780393315240
Size: 50.21 MB
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Refutes the claims of the religious right that America was founded as a Christian nation, and emphasizes that separation of church and state was designed to guarantee religious freedom