Under our American system of government, divisive and often abiding disputes may be resolved either through legislation or judicial decisions.
In Same-Sex Marriage and American Constitutionalism, Murray Dry explains why the process by which Americans arrive at these resolutions can be as important as the substance of the resolutions themselves. By taking up the question of same-sex marriage, Dry excavates the bases of why and how Americans decide as we do (and as we have done when major questions arose in the past; think: school integration, abortion, gun control, and campaign finance).
As Professor Dry retraces the path that same-sex marriage took as it wended its way through the political (that is, the legislative) process and through the court system, he finds a vivid framework for the question, “Who should decide?” It’s a question often overlooked, but one that Dry believes should not be. He argues convincingly that it does matter whether the Supreme Court or the legislature makes the final decision—so that court-mandated law does not threaten democratic representative government, and so that legislation does not trample on fundamental constitutional rights.
Murray Dry is the Charles A. Dana Professor of Political Science at Middlebury College. He is the author of Civil Peace and the Quest for Truth.
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.
Want to make sense of the U.S. Constitution? This plain-English guide walks you through this revered document, explaining how the articles and amendments came to be and how they have guided legislators, judges, and presidents and sparked ongoing debates. You'll understand all the big issues — from separation of church and state to impeachment to civil rights — that continue to affect Americans' daily lives.Get started with Constitution basics — explore the main concepts and their origins, the different approaches to interpretation, and how the document has changed over the past 200+ years
Know who has the power — see how the public, the President, Congress, and the Supreme Court share in the ruling of America
Balance the branches of government — discover what it means to be Commander in Chief, the functions of the House and Senate, and how Supreme Court justices are appointed
Break down the Bill of Rights — from freedom of religion to the prohibition of "cruel and unusual punishments," understand what the first ten amendments mean
Make sense of the modifications — see how amendments have reformed presidential elections, abolished slavery, given voting rights to women, and more
Open the book and find:The text of the Constitution and its ammendments
Discussion of controversial issues including the death penalty, abortion, and gay marriage
Why the word "democracy" doesn't appear in the Constitution
What the Electoral College is and how it elects a President
Details on recent Supreme Court decisions
The Founding Fathers' intentions for balancing power in Washington