Inherent Rights, the Written Constitution, and Popular Sovereignty
Author: Thomas B. McAffee
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Published:
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Inherent Rights, the Written Constitution, and Popular Sovereignty
Author: Thomas B. McAffee
Publisher: Bloomsbury Publishing USA
Published: 2000-07-30
Total Pages: 200
ISBN-13: 0313001103
DOWNLOAD EBOOKIn recent decades the Ninth Amendment, a provision designed to clarify that the federal government was to be one of enumerated and limited powers, has been turned into an unenumerated rights clause that effectively grants unlimited power to the judiciary. Was this the intent of the framers of the Constitution? McAffee argues that the founders had a rather different set of priorities than ours, and that the goal of enforcing fundamental human rights was not why they drafted any of the first ten amendments. They did not intend to grant to the courts the power to generate fundamental rights, whether by reference to custom or history, reason or natural law, or societal values or consensus. It has become increasingly popular to identify our constitutional order as an experiment in the protection of fundamental human rights and to forget that it is also an experiment in self-government. As fundamental as the founding generation believed basic rights to be, they saw popular authority to make decisions about government as being even more central to the project in which they were engaged. They supported natural law and rights, but they felt strongly that those rights did not bind the people or their government unless they were inserted in the written Constitution. They did not contemplate that there would be unwritten limitations on the powers granted to government.
Our Republican Constitution
Author: Randy E. Barnett
Publisher: HarperCollins
Published: 2016-04-19
Total Pages: 226
ISBN-13: 0062412302
DOWNLOAD EBOOKA concise history of the long struggle between two fundamentally opposing constitutional traditions, from one of the nation’s leading constitutional scholars—a manifesto for renewing our constitutional republic. The Constitution of the United States begins with the words: “We the People.” But from the earliest days of the American republic, there have been two competing notions of “the People,” which lead to two very different visions of the Constitution. Those who view “We the People” collectively think popular sovereignty resides in the people as a group, which leads them to favor a “democratic” constitution that allows the “will of the people” to be expressed by majority rule. In contrast, those who think popular sovereignty resides in the people as individuals contend that a “republican” constitution is needed to secure the pre-existing inalienable rights of “We the People,” each and every one, against abuses by the majority. In Our Republican Constitution, renowned legal scholar Randy E. Barnett tells the fascinating story of how this debate arose shortly after the Revolution, leading to the adoption of a new and innovative “republican” constitution; and how the struggle over slavery led to its completion by a newly formed Republican Party. Yet soon thereafter, progressive academics and activists urged the courts to remake our Republican Constitution into a democratic one by ignoring key passes of its text. Eventually, the courts complied. Drawing from his deep knowledge of constitutional law and history, as well as his experience litigating on behalf of medical marijuana and against Obamacare, Barnett explains why “We the People” would greatly benefit from the renewal of our Republican Constitution, and how this can be accomplished in the courts and the political arena.
Inventing the People: The Rise of Popular Sovereignty in England and America
Author: Edmund S. Morgan
Publisher: W. W. Norton & Company
Published: 1989-09-17
Total Pages: 320
ISBN-13: 0393347494
DOWNLOAD EBOOK"The best explanation that I have seen for our distinctive combination of faith, hope and naiveté concerning the governmental process." —Michael Kamman, Washington Post This book makes the provocative case here that America has remained politically stable because the Founding Fathers invented the idea of the American people and used it to impose a government on the new nation. His landmark analysis shows how the notion of popular sovereignty—the unexpected offspring of an older, equally fictional notion, the "divine right of kings"—has worked in our history and remains a political force today.
Popular Sovereignty and the Crisis of German Constitutional Law
Author: Peter C. Caldwell
Publisher: Duke University Press
Published: 1997
Total Pages: 324
ISBN-13: 9780822319887
DOWNLOAD EBOOKA path-breaking critical analysis of the meaning and interpretation of the German constitution in the Weimar years (1919-1933).
Sovereignty in Action
Author: Bas Leijssenaar
Publisher: Cambridge University Press
Published: 2019-07-18
Total Pages: 247
ISBN-13: 1108483518
DOWNLOAD EBOOKSovereignty, originally the figure of 'sovereign', then the state, today meets new challenges of globalization and privatization of power.
Definition and Development of Human Rights and Popular Sovereignty in Europe
Author: European Commission for Democracy through Law
Publisher: Council of Europe
Published: 2011-01-01
Total Pages: 236
ISBN-13: 9789287171344
DOWNLOAD EBOOKWhat role do the people play in defining and developing human rights? This volume explores the very topical issue of the lack of democratic legitimisation of national and international courts and the question of whether rendering the original process of defining human rights more democratic at the national and international level would improve the degree of protection they afford. The authors venture to raise the crucial question: When can a democratic society be considered to be mature enough so as to be trusted to provide its own definition of human rights obligations?
Restoring the Lost Constitution
Author: Randy E. Barnett
Publisher: Princeton University Press
Published: 2013-11-24
Total Pages: 448
ISBN-13: 0691159734
DOWNLOAD EBOOKThe 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.
Constitutional Rights and Powers of the People
Author: Wayne D. Moore
Publisher: Princeton University Press
Published: 1998
Total Pages: 312
ISBN-13: 9780691002446
DOWNLOAD EBOOKAmerican constitutionalism rests on premises of popular sovereignty, but questions remain about how the "people" and their rights and powers fit into the constitutional design. In a book that will radically reorient thinking about the Constitution, political scientist Wayne Moore offers new insights into central problems of constitutional history, theory, and law.
Sovereignty, International Law, and the French Revolution
Author: Edward James Kolla
Publisher: Cambridge University Press
Published: 2017-10-12
Total Pages: 353
ISBN-13: 1107179548
DOWNLOAD EBOOKThis book argues that the introduction of popular sovereignty as the basis for government in France facilitated a dramatic transformation in international law in the eighteenth century.
