Revolution by Judiciary : The Structure of American Constitutional Law

Revolution by Judiciary : The Structure of American Constitutional Law

Description

Although constitutional law is supposed to be fixed and enduring, its central narrative in the twentieth century has been one of radical reinterpretation--Brown v. Board of Education, Roe v. Wade, Bush v. Gore. What, if anything, justifies such radical reinterpretation? How does it work doctrinally? What, if anything, structures it or limits it?

Jed Rubenfeld finds a pattern in American constitutional interpretation that answers these questions convincingly. He posits two different understandings of how constitutional rights would apply or not apply to particular legislation. One is that a right would be violated if certain laws were passed. The other is that a right would not be violated. He calls the former "Application Understandings" and the latter "No-Application Understandings." He finds that constitutional law has almost always adhered to all of the original Application Understandings, but where it has departed from history, as it did in the Brown decision, it has departed from No-Application Understandings. Specifically, the Fourteenth Amendment did not prohibit racial segregation, so Rubenfeld argues that the Supreme Court had no problem reinterpreting it to prohibit it. It was a No-Application Understanding.

This is a powerful argument that challenges current theories of constitutional interpretation from Bork to Dworkin. It rejects simplistic originalism, but restores historicity to constitutional theorizing.

Similar Books

ISBN 10: 0195377273
ISBN 13: 9780195377279

25 May 2010
David A. Strauss

ISBN 10: 0674948416
ISBN 13: 9780674948419

18 May 1993
Bruce A. Ackerman

ISBN 10: 1541617282
ISBN 13: 9781541617285

25 Sep 2018
Akhil Reed Amar

ISBN 10: 0465064906
ISBN 13: 9780465064908

22 Jan 2015
Akhil Reed Amar

ISBN 10: 0674416929
ISBN 13: 9780674416925

02 Sep 2014
Jack M. Balkin

ISBN 10: 0674196376
ISBN 13: 9780674196377

15 Aug 1981
John Hart Ely

ISBN 10: 0195034228
ISBN 13: 9780195034226

08 Dec 1994
Philip Bobbitt

ISBN 10: 0691174040
ISBN 13: 9780691174044

30 Jan 2018
Antonin Scalia

ISBN 10: 0812972724
ISBN 13: 9780812972726

01 Dec 2006
Professor Akhil Reed Amar

ISBN 10: 0465096336
ISBN 13: 9780465096336

13 Sep 2016
Akhil Reed Amar

ISBN 10: 0300082770
ISBN 13: 9780300082777

12 May 2000
Akhil Reed Amar

ISBN 10: 1454876611
ISBN 13: 9781454876618

01 Jun 2016
Erwin Chemerinsky