merely judgment ignoring evading and trumping the supreme court constitutionalism and democracy

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Merely Judgment

Author : Martin J. Sweet
ISBN : 9780813930770
Genre : Political Science
File Size : 48. 9 MB
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Merely Judgment uses affirmative action in government contracting, legislative vetoes, flag burning, hate speech, and school prayer as windows for understanding how Supreme Court decisions send signals regarding the Court’s policy preferences to institutions and actors (such as lower courts, legislatures, executive branches, and interest groups), and then traces the responses of these same institutions and actors to Court decisions. The lower courts nearly always abide by Supreme Court precedent, but, to a surprising degree, elected branches and other institutions avoid complying with Supreme Court decisions. To explain the persistence of unconstitutional policies and legislation, Sweet isolates the ability of institutions to derail the litigation process. Merely Judgment explores the mechanisms by which litigants and their peers have escaped from the clutches of litigation and thus effectively ignored, evaded, and trumped the Supreme Court.

Parliaments And Human Rights

Author : Murray Hunt
ISBN : 9781782254386
Genre : Law
File Size : 54. 18 MB
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In many countries today there is a growing and genuinely-held concern that the institutional arrangements for the protection of human rights suffer from a 'democratic deficit'. Yet at the same time there appears to be a new consensus that human rights require legal protection and that all branches of the state have a shared responsibility for upholding and realising those legally protected rights. This volume of essays tries to understand this paradox by considering how parliaments have sought to discharge their responsibility to protect human rights. Contributors seek to take stock of the extent to which national and sub-national parliaments have developed legislative review for human rights compatibility, and the effect of international initiatives to increase the role of parliaments in relation to human rights. They also consider the relationship between legislative review and judicial review for human rights compatibility, and whether courts could do more to incentivise better democratic deliberation about human rights. Enhancing the role of parliaments in the protection and realisation of human rights emerges as an idea whose time has come, but the volume makes clear that there is a great deal more to do in all parliaments to develop the institutional structures, processes and mechanisms necessary to put human rights at the centre of their function of making law and holding the government to account. The sense of democratic deficit is unlikely to dissipate unless parliaments empower themselves by exercising the considerable powers and responsibilities they already have to interpret and apply human rights law, and courts in turn pay closer attention to that reasoned consideration. 'I believe that this book will be of enormous value to all of those interested in human rights, in modern legislatures, and the relationship between the two. As this is absolutely fundamental to the characterand credibility of democracy, academic insight of this sort is especially welcome. This is an area where I expect there to be an ever expanding community of interest.' From the Foreword by the Rt Hon John Bercow MP, Speaker of the House of Commons

The Oxford Handbook Of The Canadian Constitution

Author : Peter Oliver
ISBN : 9780190664817
Genre : Law
File Size : 84. 94 MB
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The Oxford Handbook of the Canadian Constitution provides an ideal first stop for Canadians and non-Canadians seeking a clear, concise, and authoritative account of Canadian constitutional law. The Handbook is divided into six parts: Constitutional History, Institutions and Constitutional Change, Aboriginal Peoples and the Canadian Constitution, Federalism, Rights and Freedoms, and Constitutional Theory. Readers of this Handbook will discover some of the distinctive features of the Canadian constitution: for example, the importance of Indigenous peoples and legal systems, the long-standing presence of a French-speaking population, French civil law and Quebec, the British constitutional heritage, the choice of federalism, as well as the newer features, most notably the Canadian Charter of Rights and Freedoms, Section Thirty-Five regarding Aboriginal rights and treaties, and the procedures for constitutional amendment. The Handbook provides a remarkable resource for comparativists at a time when the Canadian constitution is a frequent topic of constitutional commentary. The Handbook offers a vital account of constitutional challenges and opportunities at the time of the 150th anniversary of Confederation.

Cosmic Constitutional Theory

Author : J. Harvie Wilkinson
ISBN : 9780199846016
Genre : Law
File Size : 30. 80 MB
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What underlies this development? In this concise and highly engaging work, Federal Appeals Court Judge and noted author (From Brown to Bakke) J. Harvie Wilkinson 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.

Sexual Injustice

Author : Marc Stein
ISBN : 0807899372
Genre : Law
File Size : 87. 89 MB
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Focusing on six major Supreme Court cases during the 1960s and 1970s, Marc Stein examines the generally liberal rulings on birth control, abortion, interracial marriage, and obscenity in Griswold, Eisenstadt, Roe, Loving, and Fanny Hill alongside a profoundly conservative ruling on homosexuality in Boutilier. In the same era in which the Court recognized special marital, reproductive, and heterosexual rights and privileges, it also upheld an immigration statute that classified homosexuals as "psychopathic personalities." Stein shows how a diverse set of influential journalists, judges, and scholars translated the Court's language about marital and reproductive rights into bold statements about sexual freedom and equality.

Overruling Democracy

Author : Jamin B. Raskin
ISBN : 0415948959
Genre : Law
File Size : 83. 48 MB
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The Supreme Court has recently issued decisions announcing that citizens have neither a constitutional right to vote, nor the right to an education. Conservative judges have continually disavowed claims to any rights not specifically mentioned in the Constitution. In "Overruling Democracy, " celebrated law professor Jamin B. Raskin, argues that we need to develop a whole new set of rights, through amendments or court decisions, that revitalize and protect the democracy of everyday life. Detailing specific cases through interesting narratives, "Overruling Democracy" describes the transgressions of the Supreme Court against the Constitution and the people - and the faulty reasoning behind them -- and lays out the plan for the best way to back a more democratic system.

Constitutional Democracy In Namibia

Author : Anton Bösl
ISBN : 9991624392
Genre : Democracy
File Size : 38. 5 MB
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Political Foundations Of Judicial Supremacy

Author : Keith E. Whittington
ISBN : 9781400827756
Genre : Law
File Size : 73. 81 MB
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Should the Supreme Court have the last word when it comes to interpreting the Constitution? The justices on the Supreme Court certainly seem to think so--and their critics say that this position threatens democracy. But Keith Whittington argues that the Court's justices have not simply seized power and circumvented politics. The justices have had power thrust upon them--by politicians, for the benefit of politicians. In this sweeping political history of judicial supremacy in America, Whittington shows that presidents and political leaders of all stripes have worked to put the Court on a pedestal and have encouraged its justices to accept the role of ultimate interpreters of the Constitution. Whittington examines why presidents have often found judicial supremacy to be in their best interest, why they have rarely assumed responsibility for interpreting the Constitution, and why constitutional leadership has often been passed to the courts. The unprecedented assertiveness of the Rehnquist Court in striking down acts of Congress is only the most recent example of a development that began with the founding generation itself. Presidential bids for constitutional leadership have been rare, but reflect the temporary political advantage in doing so. Far more often, presidents have cooperated in increasing the Court's power and encouraging its activism. Challenging the conventional wisdom that judges have usurped democracy, Whittington shows that judicial supremacy is the product of democratic politics.

Restoring The Lost Constitution

Author : Randy E. Barnett
ISBN : 9781400848133
Genre : Law
File Size : 55. 29 MB
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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. In Restoring the Lost Constitution, Randy Barnett 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. Barnett 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. He 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. As clearly argued as it is insightful and provocative, Restoring the Lost Constitution forcefully 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.

Constitutionalism And Democracy

Author : Douglas Greenberg
ISBN : 0195361253
Genre : Law
File Size : 54. 40 MB
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The political changes which have occurred in the last three years have been phenomenal--the dissolving of the former Soviet Union, the impending union of Western Europe, and the evolution of democracy in Eastern Europe. What changes have occurred in the legal structure of these countries? How have their constitutions been affected by these developments? Stanley Katz, Douglas Greenberg, and other scholars and politicians from numerous countries discuss in this work the experiences of constitutionalism. Previously, little work has been done in this field, but now Constitutionalism and Democracy represents the range and depth for serious constitutional analysis. Discussing concrete issues such as human rights, nationalism, and pluralism, this volume will be essential in understanding the phenomenon of constitutionalism in various parts of the world.

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