Locates the origins of constitutional law in the Enlightenment attempt to control the violence of the state by subjecting power to reason, then shows its evolution into a tradition of rational inquiry embodied in a community of lawyers and judges. Continues with discussion of how the tradition's 19th-century presuppositions about the autonomy and rationality of constitutional argument have been undermined in the 20th century. Annotation copyright by Book News, Inc., Portland, OR
Antonin Scalia and American Constitutionalism is an in-depth study of Justice Antonin Scalia's jurisprudence, his work on the Supreme Court, and his significance in the history of American constitutionalism. This book reviews and criticizes his general jurisprudential theory, arguing that he failed to produce either the objective method he claimed or the correct constitutional results he promised.
Dworkin's important book is a collection of essays which discuss almost all of the great constitutional issues of the last two decades, including abortion, euthanasia, capital punishment, homosexuality, pornography, and free speech. Dworkin offers a consistently liberal view of the Constitution and argues that fidelity to it and to law demands that judges make moral judgments. He proposes that we all interpret the abstract language of the Constitution by reference to moral principles about political decency and justice. His 'moral reading' therefore brings political morality into the heart of constitutional law. The various chapters of this book were first published separately; now drawn together they provide the reader with a rich, full-length treatment of Dworkin's general theory of law.
Americans are increasingly ruled by an unwritten constitution consisting of executive orders, signing statements, and other forms of quasi-law that lack the predictability and consistency essential for the legal system to function properly. As a result, the U.S. Constitution no longer means what it says to the people it is supposed to govern, and the government no longer acts according to the rule of law. These developments can be traced back to a change in “constitutional morality,” Bruce Frohnen and George Carey argue in this challenging book. The principle of separation of powers among co-equal branches of government formed the cornerstone of America’s original constitutional morality. But toward the end of the nineteenth century, Progressives began to attack this bedrock principle, believing that it impeded government from “doing the people’s business.” The regime of mixed powers, delegation, and expansive legal interpretation they instituted rejected the ideals of limited government that had given birth to the Constitution. Instead, Progressives promoted a governmental model rooted in French revolutionary claims. They replaced a Constitution designed to mediate among society’s different geographic and socioeconomic groups with a body of quasi-laws commanding the democratic reformation of society. Pursuit of this Progressive vision has become ingrained in American legal and political culture—at the cost, according to Frohnen and Carey, of the constitutional safeguards that preserve the rule of law.
In Natural Law and the Antislavery Constitutional Tradition, Justin Buckley Dyer provides a succinct account of the development of American antislavery constitutionalism in the years preceding the Civil War. Within the context of recent revisionist scholarship, Dyer argues that the theoretical foundations of American constitutionalism - which he identifies with principles of natural law - were antagonistic to slavery. Still, the continued existence of slavery in the nineteenth century created a tension between practice and principle. In a series of case studies, Dyer reconstructs the constitutional arguments of prominent antislavery thinkers such as John Quincy Adams, John McLean, Abraham Lincoln and Frederick Douglass, who collectively sought to overcome the legacy of slavery by emphasizing the natural law foundations of American constitutionalism. What emerges is a convoluted understanding of American constitutional development that challenges traditional narratives of linear progress while highlighting the centrality of natural law to America's greatest constitutional crisis.
The way that Americans understand their Constitution and wider legal tradition has been dominated in recent decades by two exhausted approaches: the originalism of conservatives and the “living constitutionalism” of progressives. Is it time to look for an alternative? Adrian Vermeule argues that the alternative has been there, buried in the American legal tradition, all along. He shows that US law was, from the founding, subsumed within the broad framework of the classical legal tradition, which conceives law as “a reasoned ordering to the common good.” In this view, law’s purpose is to promote the goods a flourishing political community requires: justice, peace, prosperity, and morality. He shows how this legacy has been lost, despite still being implicit within American public law, and convincingly argues for its recovery in the form of “common good constitutionalism.” This erudite and brilliantly original book is a vital intervention in America’s most significant contemporary legal debate while also being an enduring account of the true nature of law that will resonate for decades with scholars and students.
This collection of essays analyzes ‛tradition’ as a category in the historical and comparative study of religion. The book questions the common assumption that tradition is simply the “passing down” or imitation of prior practices and discourses. It begins from the premise that many traditions are, at least in part, social fabrications, often deliberately serving particular ideological ends. Individual chapters examine a wide variety of historical periods and religions (Congolese, Buddhist, Christian, Confucian, Cree, Esoteric, Hawaiian, Hindu, Islamic, Jewish, New Religious Movement, and Shinto). Different sections of the book consider tradition's relation to three sets of issues: legitimation and authority; agency and identity; modernity and the West.
In a wide-ranging study based on legal history, political theory, and philosophical ideas going all the way back to Plato and Roman law, Robert Clinton challenges current faith in an activist judiciary. Claiming that a human-centered Constitution leads to government by reductive moral theory and illegitimate judicial review, he advocates a return to traditional jurisprudence and a God-centered Constitution grounded in English common law and its precedents.
In the battles over religion and politics in America, both liberals and conservatives often appeal to history. Liberals claim that the Founders separated church and state. But for much of American history, David Sehat writes, Protestant Christianity was intimately intertwined with the state. Yet the past was not the Christian utopia that conservatives imagine either. Instead, a Protestant moral establishment prevailed, using government power to punish free thinkers and religious dissidents. In The Myth of American Religious Freedom, Sehat provides an eye-opening history of religion in public life, overturning our most cherished myths. Originally, the First Amendment applied only to the federal government, which had limited authority. The Protestant moral establishment ruled on the state level. Using moral laws to uphold religious power, religious partisans enforced a moral and religious orthodoxy against Catholics, Jews, Mormons, agnostics, and others. Not until 1940 did the U.S. Supreme Court extend the First Amendment to the states. As the Supreme Court began to dismantle the connections between religion and government, Sehat argues, religious conservatives mobilized to maintain their power and began the culture wars of the last fifty years. To trace the rise and fall of this Protestant establishment, Sehat focuses on a series of dissenters--abolitionist William Lloyd Garrison, suffragist Elizabeth Cady Stanton, socialist Eugene V. Debs, and many others. Shattering myths held by both the left and right, David Sehat forces us to rethink some of our most deeply held beliefs. By showing the bad history used on both sides, he denies partisans a safe refuge with the Founders.
