Negotiating the Constitution

Negotiating the Constitution

Author: Joseph M. Lynch

Publisher: Cornell University Press

Published: 2005

Total Pages: 340

ISBN-13: 9780801472718

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No concept sparks more controversy in constitutional debate than "original intent." Offering a legal historian's approach to the subject, this book demonstrates that the framers deliberately obscured one of their more important decisions. Joseph M. Lynch argues that the Constitution was a product of political struggles involving regional interests, economic concerns, and ideology. The framers, he maintains, settled on enigmatic wording of the Necessary and Proper Clause and of the General Welfare provision in the Spending Clause as a compromise, leaving the extent of federal power to be determined by the political process. During ratification, however, attempts by dissident framers to undo the compromise were repelled in The Federalist: charges of overly broad congressional powers were met with protestations that in fact these powers were limited. Lynch describes how early lawmakers applied the Constitution to such issues as executive power and privilege, the deportation of aliens, and the prohibition of seditious speech. He follows the disputes over the interpretation of this document--focusing on James Madison's changing views--as the new government took shape and political parties were formed. Lynch points out that the first six Congresses and President George Washington disregarded the framers' intentions when they were deemed impractical to follow. In contrast, he warns that the version of original intent put forth in recent Supreme Court opinions regarding congressional power could hinder Congress in serving the nation.


Negotiating in Civil Conflict

Negotiating in Civil Conflict

Author: Haider Ala Hamoudi

Publisher: University of Chicago Press

Published: 2013-11-12

Total Pages: 326

ISBN-13: 022606879X

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In 2005, Iraq drafted its first constitution and held the country’s first democratic election in more than fifty years. Even under ideal conditions, drafting a constitution can be a prolonged process marked by contentious debate, and conditions in Iraq are far from ideal: Iraq has long been racked by ethnic and sectarian conflict, which intensified following the American invasion and continues today. This severe division, which often erupted into violence, would not seem to bode well for the fate of democracy. So how is it that Iraq was able to surmount its sectarianism to draft a constitution that speaks to the conflicting and largely incompatible ideological view of the Sunnis, Shi’ah, and Kurds? Haider Ala Hamoudi served in 2009 as an adviser to Iraq’s Constitutional Review Committee, and he argues here that the terms of the Iraqi Constitution are sufficiently capacious to be interpreted in a variety of ways, allowing it to appeal to the country’s three main sects despite their deep disagreements. While some say that this ambiguity avoids the challenging compromises that ultimately must be made if the state is to survive, Hamoudi maintains that to force these compromises on issues of central importance to ethnic and sectarian identity would almost certainly result in the imposition of one group’s views on the others. Drawing on the original negotiating documents, he shows that this feature of the Constitution was not an act of evasion, as is sometimes thought, but a mark of its drafters’ awareness in recognizing the need to permit the groups the time necessary to develop their own methods of working with one another over time.


Ratification

Ratification

Author: Pauline Maier

Publisher: Simon and Schuster

Published: 2011-06-07

Total Pages: 608

ISBN-13: 0684868555

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The dramatic story of the debate over the ratification of the Constitution, the first new account of this seminal moment in American history in years.


Rationing the Constitution

Rationing the Constitution

Author: Andrew Coan

Publisher: Harvard University Press

Published: 2019-04-29

Total Pages: 281

ISBN-13: 0674986954

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In this groundbreaking analysis of Supreme Court decision-making, Andrew Coan explains how judicial caseload shapes the course of American constitutional law and the role of the Court in American society. Compared with the vast machinery surrounding Congress and the president, the Supreme Court is a tiny institution that can resolve only a small fraction of the constitutional issues that arise in any given year. Rationing the Constitution shows that this simple yet frequently ignored fact is essential to understanding how the Supreme Court makes constitutional law. Due to the structural organization of the judiciary and certain widely shared professional norms, the capacity of the Supreme Court to review lower-court decisions is severely limited. From this fact, Andrew Coan develops a novel and arresting theory of Supreme Court decision-making. In deciding cases, the Court must not invite more litigation than it can handle. On many of the most important constitutional questions—touching on federalism, the separation of powers, and individual rights—this constraint creates a strong pressure to adopt hard-edged categorical rules, or defer to the political process, or both. The implications for U.S. constitutional law are profound. Lawyers, academics, and social activists pursuing social reform through the courts must consider whether their goals can be accomplished within the constraints of judicial capacity. Often the answer will be no. The limits of judicial capacity also substantially constrain the Court’s much touted—and frequently lamented—power to overrule democratic majorities. As Rationing the Constitution demonstrates, the Supreme Court is David, not Goliath.


The Flexible Constitution

The Flexible Constitution

Author: Sean Wilson

Publisher: Rowman & Littlefield

Published: 2013

Total Pages: 237

ISBN-13: 0739178156

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This is a new Wittgensteinian account of the American Constitution that provides a fresh perspective on how judges can follow a legal document written in flexible language. The book shows why originalism is incompatible with the American legal system and challenges the views o...


A Brilliant Solution

A Brilliant Solution

Author: Carol Berkin

Publisher: Houghton Mifflin Harcourt

Published: 2002

Total Pages: 324

ISBN-13: 9780156028721

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Revisiting all the original documents and using her deep knowledge of eighteenth-century history and politics, Carol Berkin takes a fresh look at the men who framed the Constitution, the issues they faced, and the times they lived in. Berkin transports the reader into the hearts and minds of the founders, exposing their fears and their limited expectations of success.


Constitutional Negotiations

Constitutional Negotiations

Author: Sumit Bisarya and Thibaut Noel

Publisher: International Institute for Democracy and Electoral Assistance (International IDEA)

Published: 2021-04-26

Total Pages: 14

ISBN-13: 9176714144

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Countries often amend their constitutions or enact new ones following major political events, such as the founding of newly independent states, the fall of an authoritarian regime or the end of violent conflict. Significant constitutional reform at a crucial moment is often a high-stakes process because a constitution regulates access to public power and resources among different groups. While disagreements over divisive topics are likely and even inherent to constitution-making, they may also result in a serious deadlock when stakeholders are unable to reach agreement. A prolonged deadlock can delay or even derail the whole reform process. In this context, it may be advisable to create incentives that can help parties to the negotiations overcome divergence and resolve deadlocks should they occur. This Constitution Brief focuses on strategies and mechanisms for breaking a deadlock in constitutional negotiations conducted in an environment of competitive democratic politics.


Negotiating the Impossible

Negotiating the Impossible

Author: Deepak Malhotra

Publisher: Berrett-Koehler Publishers

Published: 2018-07-19

Total Pages: 295

ISBN-13: 1626566992

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“Filled with great strategies you can immediately put to use in your business and personal lives . . . extremely entertaining, thought-provoking.” —Tyra Banks, CEO, TYRA Beauty, and creator of America’s Next Top Model Some negotiations are easy. Others are more difficult. And then there are situations that seem completely hopeless. Conflict is escalating, people are getting aggressive, and no one is willing to back down. And to top it off, you have little power or other resources to work with. Harvard professor and negotiation adviser Deepak Malhotra shows how to defuse even the most potentially explosive situations and to find success when things seem impossible. Malhotra identifies three broad approaches for breaking deadlocks and resolving conflicts, and draws out scores of actionable lessons using behind-the-scenes stories of fascinating real-life negotiations, including drafting of the US Constitution, resolving the Cuban Missile Crisis, ending bitter disputes in the NFL and NHL, and beating the odds in complex business situations. But he also shows how these same principles and tactics can be applied in everyday life, whether you are making corporate deals, negotiating job offers, resolving business disputes, tackling obstacles in personal relationships, or even negotiating with children. As Malhotra reminds us, regardless of the context or which issues are on the table, negotiation is always, fundamentally, about human interaction. No matter how high the stakes or how protracted the dispute, the object of negotiation is to engage with other human beings in a way that leads to better understandings and agreements. The principles and strategies in this book will help you do this more effectively in every situation. “This book is magic for any deal maker.” —Daniel H. Pink, New York Times-bestselling author


Negotiating Opportunities

Negotiating Opportunities

Author: Jessica McCrory Calarco

Publisher: Oxford University Press

Published: 2018

Total Pages: 273

ISBN-13: 019063443X

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In Negotiating Opportunities, Jessica McCrory Calarco argues that the middle class has a negotiated advantage in school. Drawing on five years of ethnographic fieldwork, Calarco traces that negotiated advantage from its origins at home to its consequences at school. Through their parents' coaching, working-class students learn to follow rules and work through problems independently. Middle-class students learn to challenge rules and request assistance, accommodations, and attention in excess of what is fair or required. Teachers typically grant those requests, creating advantages for middle-class students. Calarco concludes with recommendations, advocating against deficit-oriented programs that teach middle-class behaviors to working-class students. Those programs ignore the value of working-class students' resourcefulness, respect, and responsibility, and they do little to prevent middle-class families from finding new opportunities to negotiate advantages in school.


Negotiating Space

Negotiating Space

Author: Barbara H. Rosenwein

Publisher: Manchester University Press

Published: 1999

Total Pages: 292

ISBN-13: 9780719055652

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This is an examination of how and why medieval kings declared certain properties immune from their own power. The author argues that they were not compelled by weakness, but rather by a need to show strength and reaffirm status and exercise authority, and that we need a new understanding of the political and social exchanges of the period. The declaration of immunities were really instruments used by kings and bishops to forge alliances with the noble families and monastic centres which were the essence of their authority.