Great Cases in Constitutional Law

Princeton University Press
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Slavery, segregation, abortion, workers' rights, the power of the courts. These issues have been at the heart of the greatest constitutional controversies in American history. And in this concise and thought-provoking volume, some of today's most distinguished legal scholars and commentators explain for a general audience how five landmark Supreme Court cases centered on those controversies shaped the country's destiny and continue to affect us even now. The book is a profound exploration of the Supreme Court's importance to America's social and political life. It is also, as many of the contributors show, an intriguing reflection of what some have seen as an important trend in legal scholarship away from an uncritical belief in the essentially benign nature of judicial power.

Robert George opens with an illuminating survey of the themes that unite and divide the five cases. Other contributors then examine each case in detail through a lively commentary-and-response format. Mark Tushnet and Jeremy Waldron exchange views on Marbury v. Madison, the pivotal 1803 case that established the power of the courts to invalidate legislation. Cass Sunstein and James McPherson discuss Dred Scott v. Sandford (1857), the notorious case that confirmed the rights of slaveowners, declared that black people could not be American citizens, and is often seen as a cause of the Civil War. Hadley Arkes and Donald Drakeman explore the legacy of Lochner v. New York (1905), a case that ushered in decades of judicial hostility to social welfare laws. Earl Maltz and Walter Murphy assess Brown v. Topeka Board of Education (1954), the famous case that ended racial segregation in public schools. Finally, Jean Bethke Elshtain and George Will tackle Roe v. Wade (1973), still a flashpoint a quarter of a century later in the debate over abortion. While some of the contributors show sympathy for strong judicial interventions on social issues, many across the ideological spectrum are sharply critical of judicial activism.


A compelling introduction to the greatest cases in U.S. constitutional law, this is also an enlightening glimpse of the state of the art in American legal scholarship.

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About the author

Robert P. George is McCormick Professor of Jurisprudence at Princeton University. He has served as a presidential appointee to the U.S. Commission on Civil Rights and as a Judicial Fellow at the Supreme Court of the United States, where he received the Justice Tom C. Clark Award.
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Additional Information

Publisher
Princeton University Press
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Published on
Mar 4, 2016
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Pages
216
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ISBN
9781400882724
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Language
English
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Genres
Law / Constitutional
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This content is DRM protected.
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In his 1996 State of the Union Address, President Bill Clinton announced that the "age of big government is over." Some Republicans accused him of cynically appropriating their themes, while many Democrats thought he was betraying the principles of the New Deal and the Great Society. Mark Tushnet argues that Clinton was stating an observed fact: the emergence of a new constitutional order in which the aspiration to achieve justice directly through law has been substantially chastened.

Tushnet argues that the constitutional arrangements that prevailed in the United States from the 1930s to the 1990s have ended. We are now in a new constitutional order--one characterized by divided government, ideologically organized parties, and subdued constitutional ambition. Contrary to arguments that describe a threatened return to a pre-New Deal constitutional order, however, this book presents evidence that our current regime's animating principle is not the old belief that government cannot solve any problems but rather that government cannot solve any more problems.


Tushnet examines the institutional arrangements that support the new constitutional order as well as Supreme Court decisions that reflect it. He also considers recent developments in constitutional scholarship, focusing on the idea of minimalism as appropriate to a regime with chastened ambitions. Tushnet discusses what we know so far about the impact of globalization on domestic constitutional law, particularly in the areas of international human rights and federalism. He concludes with predictions about the type of regulation we can expect from the new order.


This is a major new analysis of the constitutional arrangements in the United States. Though it will not be received without controversy, it offers real explanatory and predictive power and provides important insights to both legal theorists and political scientists.

John Hart Ely is a leading contemporary writer on political theory from the standpoint of American constitutional law. This collection covers a full range of topics of constitutional interpretation: federalism, separation of powers, freedom of expression, religious freedom, criminal procedure, racial discrimination, "substantive due process," and honesty in government. Organized under these heads and linked by the author's witty explanatory and autobiographical remarks, the essays and other documents--many previously unpublished in any forum--range chronologically over the past three decades, from memoranda he wrote as a student working with lead counsel Abe Fortas on the landmark case of Gideon v. Wainwright to a comment on the constitutional implications of the O. J. Simpson verdict.

Before beginning his academic career, Ely was the junior member of the Warren Commission's sixteen-lawyer staff, Chief Justice Earl Warren's law clerk, and a public defender in San Diego; and during the Ford Administration he took time off to serve as the third-ranking official of the U.S. Department of Transportation. This book reflects his various experience. It comments on many of the past quarter century's "hot button" issues--including abortion, affirmative action, anti-Communist legislation, busing, flag burning, governmental display of nativity scenes, the Nixon impeachment, "trial by newspaper," the Clarence Thomas-Anita Hill contretemps, congressionally unauthorized war in the Persian Gulf and Bosnia, and whether the Warren Commission Report should be officially reexamined.

For many Americans, the word "constitution" means just one thing: the national Constitution. According to a recent survey, almost half do not know that individual states also have constitutions. Scholars have also paid little attention to state constitutions, favoring the apparently more dynamic and significant federal scene. G. Alan Tarr seeks to change that in this landmark book. A leading authority on state legal issues, he combines history, law, and political science to present a thorough and long-needed account of the distinct and important role of state constitutions in American life.

Tarr shows that state constitutional politics are dominated by three crucial issues with little salience at the national level: the distribution of power among groups and regions within states, the scope of state and local governmental authority, and the relation of the state to economic activity. He explains how state constitutions differ from the national Constitution in treating not only matters of high principle but also such mundane subjects as ski trails and motor vehicle revenues. He also explores why state constitutions, unlike their federal counterpart, have been so frequently amended and replaced. Tarr concludes that the United States not only has a system of dual constitutionalism but also has dual constitutional cultures.


Powerfully argued and meticulously researched, the book fills an important gap in political and legal studies and finally gives state constitutions the scholarly attention they richly deserve.

It is a common supposition among many of our cultural elites that a constitutional “wall of separation” between church and state precludes religious believers from bringing their beliefs to bear on public matters. This is because secular liberals typically assume that their own positions on morally charged issues of public policy are the fruit of pure reason, while those of their morally conservative opponents reflect an irrational religious faith. In The Clash of Orthodoxies Robert George shows that this supposition is wrong on both counts.

Challenging liberalism’s claim to represent the triumph of reason, George argues that on controversial issues like abortion, stem-cell research, euthanasia, homosexuality, and same-sex marriage, traditional Judeo-Christian beliefs are actually rationally superior to secular liberal alternatives. Drawing on the natural law philosophical tradition, George demolishes various secularist pretenses, such as the notion that the very young and very old among us are somehow subpersonal and not worthy of full legal protection. He reveals the dubious person/body dualism implicit in secularist arguments, and he demonstrates the flawed reasoning behind the idea that the state ought to be neutral regarding competing understandings of the nature and value of marriage.

George also revisits the controversy surrounding his participation in the First Things “End of Democracy?” symposium, in which he considered the relevance of Catholic teachings regarding the legitimacy of political regimes to the contemporary American situation. George argues that because natural law and natural rights doctrine lie at the foundation of the American republic, the judicial reading of the Constitution that has undermined democracy in order to enshrine the secularist agenda is deeply flawed.

In advancing his thesis, George argues for a return to old-fashioned liberalism, a worldview that he claims is best exemplified by Pope John Paul II, whose teachings laud democracy, religious liberty, and economic freedom while also recognizing the demands of civil rights, social and economic justice, and the principle of subsidiarity. These demands restrain Catholics—and indeed all people of faith—from making personal freedom an absolute, and George takes to task those political leaders who, though believers, have denied or ignored the political responsibility this entails.

The Clash of Orthodoxies is a profoundly important contribution to our contemporary national conversation about the proper role of religion in politics. The lucid and persuasive prose of Robert George, one of America’s most prominent public intellectuals, will shock secular liberals out of an unwarranted complacency and provide powerful ammunition for embattled defenders of traditional morality.
 

Germain Grisez has been a leading voice in moral philosophy and theology since the Second Vatican Council. In this book, such major thinkers as John Finnis, Ralph McInerny, and William E. May consider issues in ethics, metaphysics, and politics that have been central to Grisez's work.

Grisez's reconsideration of the philosophical foundations of Christian moral teaching, seeking to eliminate both legalistic interpretation and theological dissent, has won the support of a number of leading Catholic moralists. In the past decade, moreover, many philosophers outside of Catholicism have weighed carefully Grisez's alternatives to theories that have long dominated secular moral philosophy.

This book presents a broad spectrum of viewpoints on subjects ranging from contraception to capital punishment and considers such controversies as the scriptural basis of Grisez's work his interpretations of Aquinas, and his new natural law theory. The collection includes not only contributions from Grisez's supporters but also from critics of his thought, from proportionalist Edward Collins Vacek, SJ, to the neo-Thomist Ralph McInerny. A reply by Grisez, written with Joseph M. Boyle Jr., addresses the issues and viewpoints expressed, while an afterword by Russell Shaw reviews Grisez's pioneering work and conveys a vivid sense of the philosopher's personality.

As Grisez's influence grows, this volume will serve as an important touchstone on his contributions to moral and political philosophy and theology.

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