constitutional interpretation the basic questions

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Constitutional Interpretation

Author : Sotirios A. Barber
ISBN : 9780199746309
Genre : Law
File Size : 87. 70 MB
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Ronald Dworkin famously argued that fidelity in interpreting the Constitution as written calls for a fusion of constitutional law and moral philosophy. Barber and Fleming take up that call, arguing for a philosophic approach to constitutional interpretation. In doing so, they systematically critique the competing approaches - textualism, consensualism, originalism, structuralism, doctrinalism, minimalism, and pragmatism - that aim and claim to avoid a philosophic approach. Constitutional Interpretation: The Basic Questions illustrates that these approaches cannot avoid philosophic reflection and choice in interpreting the Constitution. Barber and Fleming contend that fidelity in constitutional interpretation requires a fusion of philosophic and other approaches, properly understood. Within such a fusion, interpreters would begin to think of text, consensus, intentions, structures, and doctrines not as alternatives to, but as sites of philosophic reflection about the best understanding of our constitutional commitments. Constitutional Interpretation: The Basic Questions, examines the fundamental inquiries that arise in interpreting constitutional law. In doing so, the authors survey the controversial and intriguing questions that have stirred constitutional debate in the United States for over two centuries, such as: how and for what ends should governmental institutions and powers be arranged; what does the Constitution mean under general circumstances and how should it be interpreted during concrete controversies; and finally how do we decide what our constitution means and who ultimately decides its meaning.

Fidelity To Our Imperfect Constitution

Author : James E. Fleming
ISBN : 9780199793372
Genre : Constitutional law
File Size : 49. 50 MB
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In recent years, some have asked "Are we all originalists now?" and many have assumed that originalists have a monopoly on concern for fidelity in constitutional interpretation. In Fidelity to Our Imperfect Constitution, James Fleming rejects originalisms-whether old or new, concrete or abstract, living or dead. Instead, he defends what Ronald Dworkin called a "moral reading" of the United States Constitution, or a "philosophic approach" to constitutional interpretation. He refers to conceptions of the Constitution as embodying abstract moral and political principles-not codifying concrete historical rules or practices-and of interpretation of those principles as requiring normative judgments about how they are best understood-not merely historical research to discover relatively specific original meanings. Through examining the spectacular concessions that originalists have made to their critics, he shows the extent to which even they acknowledge the need to make normative judgments in constitutional interpretation. Fleming argues that fidelity in interpreting the Constitution as written requires a moral reading or philosophic approach. Fidelity commits us to honoring our aspirational principles, not following the relatively specific original meanings (or original expected applications) of the founders. Originalists would enshrine an imperfect Constitution that does not deserve our fidelity. Only a moral reading or philosophic approach, which aspires to interpret our imperfect Constitution so as to make it the best it can be, gives us hope of interpreting it in a manner that may deserve our fidelity.

Interpretation And Legal Theory

Author : Andrei Marmor
ISBN : 9781847310873
Genre : Law
File Size : 48. 48 MB
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This is a revised and extensively rewritten edition of one of the most influential monographs on legal philosophy published in recent years. Writing in the introduction to the first edition the author characterized Anglophone philosophers as being ..."divided, and often waver[ing] between two main philosophical objectives: the moral evaluation of law and legal institutions, and an account of its actual nature." Questions of methodology have therefore tended to be sidelined, but were bound to surface sooner or later, as they have in the later work of Ronald Dworkin. The main purpose of this book is to provide a critical assessment of Dworkin's methodological turn, away from analytical jurisprudence towards a theory of interpretation, and the issues it gives rise to. The author argues that the importance of Dworkin's interpretative turn is not that it provides a substitute for 'semantic theories of law' (a dubious concept), but that it provides a new conception of jurisprudence, aiming to present itself as a comprehensive rival to the conventionalism manifest in legal positivism. Furthermore, once the interpretative turn is regarded as an overall challenge to conventionalism, it is easier to see why it does not confine itself to a critique of method. Law as interpretation calls into question the main tenets of its positivist rival, in substance as well as method. The book re-examines conventionalism in the light of this interpretative challenge.

Judicial Review In An Age Of Moral Pluralism

Author : Ronald C. Den Otter
ISBN : 9780521762045
Genre : Law
File Size : 86. 92 MB
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This book considers how judicial review can be improved to strike the appropriate balance between legislative and judicial power.

American Constitutional Law

Author : Donald P. Kommers
ISBN : 9780742599833
Genre : Law
File Size : 79. 97 MB
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American Constitutional Law: Essays, Cases, and Comparative Notes is a unique casebook that encourages citizens and students of the Constitution to think critically about the fundamental principles and policies of the American constitutional order. In addition to its distinguished authorship, the book has two prominent features that set it apart from other books in the field: an emphasis on the social, political, and moral theory that provides meaning to constitutional law and interpretation, and a comparative perspective that situates the American experience within a world context that serves as an invaluable prism through which to illuminate the special features of our own constitutional order. While the focus of the book is entirely on American constitutional law, the book asks students to consider what, if anything, is unique in American constitutional life and what we share with other constitutional democracies. Each chapter is preceded by an introductory essay that highlights these major themes and also situates the cases in their proper historical and political contexts. This new edition offers updated and expanded treatment of a number of important and timely topics, including gerrymandering and campaign finance, the death penalty, privacy, affirmative action, and school segregation. The new edition offers: _ Updated and expanded treatment of key cases on gerrymandering and campaign finance _ Expanded discussion of the Court's work federalism and the commerce clause _ Discussions of the Court's new cases on the death penalty, including a discussion of the controversy within the Court about the propriety of citing foreign case law _ An expanded discussion of the Court's recent work in the area of privacy, including the Court's decisions with regard to partial birth abortions and same sex marriages _ An expanded section on the Court's continuing efforts to develop a coherent takings clause jurisprudence _ Full coverage of new developments and cases concerning affirmative action and school desegregation

Constitutional Interpretation

Author : Craig Ducat
ISBN : 9781111832988
Genre : Political Science
File Size : 61. 6 MB
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One of the best-known, most comprehensive, and widely read Constitutional Law textbooks published today, CONSTITUTIONAL INTERPRETATION, Tenth Edition, is updated to reflect current issues and cases relevant to students. CONSTITUTIONAL INTERPRETATION is known for offering a good balance between textual explanation and edited court cases but is written in clear, concise language. The text is popular with instructors because it explains difficult concepts extensively and clearly. In addition, each chapter possesses a stand-alone quality which gives the instructor freedom to use whatever he or she wishes, by chapter and within chapters. Major cases, notes, and charts support the text so students can clearly see how one concept relates to another. Important Notice: Media content referenced within the product description or the product text may not be available in the ebook version.

Constitutional Interpretation Rights Of The Individual

Author : Craig Ducat
ISBN : 9781111833008
Genre : Political Science
File Size : 80. 64 MB
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One of the best-known, most comprehensive, and widely read Constitutional Law textbooks published today, CONSTITUTIONAL INTERPRETATION, VOLUME II, Tenth Edition, is updated to reflect current issues and cases relevant to students. CONSTITUTIONAL INTERPRETATION, VOLUME II is known for offering a good balance between textual explanation and edited court cases but is written in clear, concise language. The text is popular with instructors because it explains difficult concepts extensively and clearly. In addition, each chapter possesses a stand-alone quality which gives the instructor freedom to use whatever he or she wishes, by chapter and within chapters. Major cases, notes, and charts support the text so students can clearly see how one concept relates to another. Important Notice: Media content referenced within the product description or the product text may not be available in the ebook version.

Philosophical Foundations Of Constitutional Law

Author : University Professor of Law and Philosophy David Dyzenhaus
ISBN : 9780198754527
Genre :
File Size : 58. 31 MB
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Constitutional law has been and remains an area of intense philosophical interest, and yet the debate has taken place in a variety of different fields with very little to connect them. In a collection of essays bringing together scholars from several constitutional systems and disciplines, Philosophical Foundations of Constitutional Law unites the debate in a study of the philosophical issues at the very foundations of the idea of a constitution: why one might be necessary; what problems it must address; what problems constitutions usually address; and some of the issues raised by the administration of a constitutional regime. Although these issues of institutional design are of abiding importance, many of them have taken on new significance in the last few years as law-makers have been forced to return to first principles in order to justify novel practices and arrangements in their constitutional orders. Thus, questions of constitutional 'revolutions,' challenges to the demands of the rule of law, and the separation of powers have taken on new and pressing importance. The essays in this volume address these questions, filling the gap in the philosophical analysis of constitutional law. The volume will provoke specialists in philosophy, politics, and law to develop new philosophically grounded analyses of constitutional law, and will be a valuable resource for graduate students in law, politics and philosophy.

Constitutional Originalism

Author : Robert W. Bennett
ISBN : 9780801461118
Genre : Law
File Size : 43. 29 MB
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Problems of constitutional interpretation have many faces, but much of the contemporary discussion has focused on what has come to be called "originalism." The core of originalism is the belief that fidelity to the original understanding of the Constitution should constrain contemporary judges. As originalist thinking has evolved, it has become clear that there is a family of originalist theories, some emphasizing the intent of the framers, while others focus on the original public meaning of the constitutional text. This idea has enjoyed a modern resurgence, in good part in reaction to the assumption of more sweeping power by the judiciary, operating in the name of constitutional interpretation. Those arguing for a "living Constitution" that keeps up with a changing world and changing values have resisted originalism. This difference in legal philosophy and jurisprudence has, since the 1970s, spilled over into party politics and the partisan wrangling over court appointments from appellate courts to the Supreme Court. In Constitutional Originalism, Robert W. Bennett and Lawrence B. Solum elucidate the two sides of this debate and mediate between them in order to separate differences that are real from those that are only apparent. In a thorough exploration of the range of contemporary views on originalism, the authors articulate and defend sharply contrasting positions. Solum brings learning from the philosophy of language to his argument in favor of originalism, and Bennett highlights interpretational problems in the dispute-resolution context, describing instances in which a living Constitution is a more feasible and productive position. The book explores those contrasting positions, to be sure, but also uncovers important points of agreement for the interpretational enterprise. This provocative and absorbing book ends with a bibliographic essay that points to landmark works in the field and helps lay readers and students orient themselves within the literature of the debate.

Foreign Affairs Federalism

Author : Michael J. Glennon
ISBN : 9780199355907
Genre : Law
File Size : 36. 77 MB
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Challenging the myth that the federal government exercises exclusive control over U.S. foreign-policymaking, Michael J. Glennon and Robert D. Sloane propose that we recognize the prominent role that states and cities now play in that realm. Foreign Affairs Federalism provides the first comprehensive study of the constitutional law and practice of federalism in the conduct of U.S. foreign relations. It could hardly be timelier. States and cities recently have limited greenhouse gas emissions, declared nuclear free zones and sanctuaries for undocumented immigrants, established thousands of sister-city relationships, set up informal diplomatic offices abroad, and sanctioned oppressive foreign governments. Exploring the implications of these and other initiatives, this book argues that the national interest cannot be advanced internationally by Washington alone. Glennon and Sloane examine in detail the considerable foreign affairs powers retained by the states under the Constitution and question the need for Congress or the president to step in to provide "one voice" in foreign affairs. They present concrete, realistic ways that the courts can update antiquated federalism precepts and untangle interwoven strands of international law, federal law, and state law. The result is a lucid, incisive, and up-to-date analysis of the rules that empower-and limit-states and cities abroad.

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