The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd ed.

Book Description

Kommers’s comprehensive work surveys the development of German constitutional doctrine between 1949, when the Federal Constitutional Court was founded, and 1996. Extensively revised and expanded to take into account recent developments since German unification, this second edition describes the background, structure, and functions of the Court and provides extensive commentary on German constitutional interpretation, and includes translations of seventy-eight landmark decisions. These cases include the highly controversial religious liberty and free speech cases handed down in 1995.

Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review

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Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review
Keith E. Whittington
Manufacturer: University Press of Kansas
ProductGroup: Book
Binding: Paperback

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Constitutional Construction: Divided Powers and Constitutional Meaning
The American Constitution and the Debate over Originalism
Democracy and Distrust: A Theory of Judicial Review (Harvard Paperbacks)
Active Liberty: Interpreting Our Democratic Constitution
Originalism in American Law and Politics: A Constitutional History (The Johns Hopkins Series in Constitutional Thought)

ASIN: 070061141X

Book Description

Constitutional scholarship has deteriorated into a set of armed camps, with defenders of different theories of judicial review too often talking to their own supporters but not engaging their opponents. This book breaks free of the stalemate and reinvigorates the debate over how the judiciary should interpret the Constitution.

Keith Whittington reconsiders the implications of the fundamental legal commitment to faithfully interpret our written Constitution. Making use of arguments drawn from American history, political philosophy, and literary theory, he examines what it means to interpret a written constitution and how the courts should go about that task. He concludes that when interpreting the Constitution, the judiciary should adhere to the discoverable intentions of the Founders.

Other originalists have also asserted that their approach is required by the Constitution but have neither defended that claim nor effectively responded to critics of their assumptions or their method. This book sympathetically examines the most sophisticated critiques of originalism based on postmodern, hermeneutic, and literary theory, as well as the most common legal arguments against originalists. Whittington explores these criticisms, their potential threat to originalism, and how originalist theory might be reconstructed to address their concerns. In a nondogmatic and readily understandable way, he explains how originalist methods can be reconciled with an appropriate understanding of legal interpretation and why originalism has much to teach all constitutional theorists. He also shows how originalism helps realize the democratic promise of the Constitution without relying on assumptions of judicial restraint.

This book carefully examines both the possibilities and the limitations of constitutional interpretation and judicial review. It shows us not only what the judiciary ought to do, but what the limits of appropriate judicial review are and how judicial review fits into a larger system of constitutional government. With its detailed and wide-ranging explorations in history, philosophy, and law, this book is essential reading for anyone interested in how the Constitution ought to be interpreted and what it means to live under a constitutional government.

Marbury v. Madison : The Origins and Legacy of Judicial Review
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Activist Judges? I give you an activist judge!

generally liberal and wrong, but a good subject introduction

Important Legal History

Marbury v. Madison : The Origins and Legacy of Judicial Review
William Edward Nelson , and William E. Nelson
Manufacturer: University Press of Kansas
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M'Culloch V. Maryland: Securing a Nation (Landmark Law Cases and American Society)

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The Salem Witchcraft Trials: A Legal History

Griswold V. Connecticut: Birth Control And The Constitutional Right Of Privacy (Landmark Law Cases & American Society)

ASIN: 0700610626

Book Description

We take for granted today the tremendous power of the Supreme Court to interpret our laws and overrule any found in conflict with the Constitution. Yet our nation was a quarter-century old before that power of "judicial review" was fully articulated by the Court itself in Marbury v. Madison (1803). William Nelson's concise study of that landmark case provides an insightful and readable guide for students and general readers alike.

On the surface, the case itself seems a minor one at best. William Marbury, a last-minute judicial appointee of outgoing Federalist president John Adams, demanded redress from the Supreme Court in 1801 when his commission was not delivered. But Chief Justice John Marshall could clearly see the danger his demand posed for a weak court filled with Federalist judges. Wary of the Court's standing with the new Republican administration of Thomas Jefferson, Marshall hit upon a solution that was both principled and pragmatic. He determined that while Marbury was justified in his suit, the law on which his claim was based was in conflict with the Constitution. It was the first time that the Court struck down an act of Congress as unconstitutional, thus establishing the doctrine of judicial review, which designates the Court as chief interpreter of the Constitution.

Nelson relates the story behind Marbury and explains why it is a foundational case for understanding the Supreme Court. He reveals how Marshall deftly avoided a dangerous political confrontation between the executive and judicial branches by upholding the rule of law. He also shows how by asserting that the task of courts was one of discovering rather than making law, Marshall managed to shore up the Court's prestige and power rather than have it serve partisan political agendas.

Nelson clarifies how the Marshall court sought to preserve what was best in eighteenth-century constitutionalism while accommodating nineteenth-century political realities, and also traces the gradual transformation of Marbury-style judicial review since Marshall's time.

Although the Supreme Court did not assert its power of judicial review for another fifty-four years after Marbury, it has since then invalidated numerous acts of Congress. From Marshall's modest bid for consensus to what some consider the modern Court's "activist" excesses, judicial review has been a cornerstone in the edifice of the federal judiciary. Nelson's analysis helps us better understand how this fundamental principle emerged and why it still matters.

This book is part of the Landmark Law Cases and American Society series.

Customer Reviews:

Activist Judges? I give you an activist judge!.......2006-02-07

So the founding fathers more or less set up a judiciary for some purpose, likely similar to the British courts with which they were accustomed, and maybe laws would be struck down (John Jay had done this previously). So what's all this talk about Marbury v. Madison? Why should we care who Chief John Marshall was? This short book (125 pages) does an excellent job of answering these two vital questions. Marshall was a man with a powerful personality and great intelligence that focused the power of the judiciary and made it, through his own will alone it seems, into an equal arm of government. The author explores the historical undertones that brought the actually action to the court (as well as the sister actions), explores what made this decisions so different in form and function to all previous decisions. He then goes on to review some of the long term aspects within the judiciary as a direct result of this decision and closes by reviewing the impact of Marbury to other jurisdictions (countries).

generally liberal and wrong, but a good subject introduction.......2005-06-02

This book was written by a liberal east coast law professor.
Its an account of how the tyranny of the courts developed over
time and how they gained the power they have today. The writer
is mostly wrong in his conclusions, but he is a good source for
more serious writers on this subjects in that he at least gets
some of the facts right.

Judicial Review is the self-given unconstitutional power of the
federal courts to oversee the other branches of government and
to make laws for the country. While such powers were talked
about in the federalist papers, they were explicitly excluded
from the constitution and did not appear until 1803 when
John Marshall launched his politically motiviated coup against
the other branches while they were weak and divided.

The book clearly shows that the power of judicial review is
unconsitutional and how it was only created as a personal
decision made by Marshall. What is not mentioned was the
part secular humanism played in its creation. In a secular
humanist society, judges control the meaning of the law and
act as aribrary rulers over normal people. Elected leaders
are pushed to the side in favor of unelected judges who use
power in the name of the law to impose their will.

Chapter 1 makes the argument for a secular humanist government.
Chapter 2 shows how the conflict between the Federalists and
the liberals resulted in political gridlock which allowed the
courts to grab for power. The third chapter gives a biased
and wrong portrait of John Marshall. In Chapter 5, we see
how the liberals chipped away at the constitution a little bit
at a time with their new power. How they subverted the system
slowly and built up the power of the judges is in the next
chapter.

In Chapter 7, the book starts to look at the Crisis of democracy
in America during the 1930s. The socialist Franklin Roosevelt
was attempting to implement an anti-constitutional socialist
agenda on the country. The court attempted to stand up to
him, but after going eye-to-eye backed down. The writer doesn't
properly deal with events, but what happened was that democracy
failed for a time and the court itself was subverted by liberal
justices who entrenched themselves for a battle against freedom
that has lasted until today. The liberals used the conservative
attempt to defend the constitution with judicial review as an
excuse (when they gained power) to overthrow the whole
constitution and establish the judicial tyranny that exists
today. What that fight shows is that judicial review is useless
to those who would defend the constitution. It is only useful
in the hands of liberals who would destroy it.

The writer at this point shows his liberal hand of cards. He
comes out in favor of so-called minority rule against the
constitution and democracy. Minority rule is really rule by
secular humanist judges who want to be tyrants over ordinary
Americans. These are the people who want to give americans
rights they don't want while they take all our freedoms away.

A civil or a constitutional right is the creation of a government
of man. It has no meaning and no value. Freedom is the creation
of a strong people and the laws of nature. There is nothing more
precious than freedom and freedom is worth more than the entire
bill of rights and every decision by every judge who ever lived.

Rather than undemocratic minority government by judges, America
needs to restore the constitution and begin to trust its leaders
again. Congress and the President under our system should have
an equal opinion with the court on what the constitution means
and what is constitutional. In fact, since they are elected
by the people, their opinion should matter more than that of
the court.

At the end of the book, the liberal writer goes all out in
support of judicial tyranny. People and their elected leaders
can't be trusted. We need a living constitution where judges
rewrite it at will and our very lives can be taken away by
judges (see what happened this year in Florida).

Unelected judges can not be trusted with our freedom. They
are too easily corrupted by power and unaccountability. Nelson
fails, in particular to deal with the right to life and the law.
The right to life and being on the side of life is key to any
real system of law. Its in every document the founders wrote
and yet judges ignore it every day while presiding over murder
from the bench.

Nelson also plays the race card toward the end. He calls for
the preservation of the liberal status quo established in the
1930s and suggests that any attempt to restore the real american
law that existed before socialism put its claws into the country
under FDR will lead to racism. In fact, just the opposite is
true. Judges have been at the forefront of establishing
segregation and race in the law since the 1890s. True freedom
means what it says. It scares liberals, but restoring real
freedom would be worth more than any liberal promises of rights.

Disregarding the liberal nonsense at the end of the book, this
book clearly makes the case that judical review is
unconstitutional and can only lead to evil. He also establishes
(without knowing it) the case for fundemental reform of the
courts and the law. But rather than his world of secular
humanist liberalism, reform means making judges accountable,
restoring the right to life and property, ending the
anti-constitutional invention known as judicial review and
restoring the balance in government such that courts consider
the views of the president and congress in making decisions.

Important Legal History.......2004-05-14

Marbury v. Madison is a case that every law student knows and that very few people understand. Although modern legal discourse focuses on cases that decide social issues like racial preferences, abortion, and gay rights, none of these cases are as important as Marbury. The reason for this is simple - - unless Justice Marshall had established that it was the exclusive province of the judiciary to determine the constitutionality of legislation, none of the important social issues would be decided in the courts. They would be decided in the legislature or in the executive.

Mr. Nelson does a nice job of tracing the history that gave rise to judicial review and explaining how judicial review has become the primary place where many of our social problems are resolved. I recommend it to anyone who is interested in why 9 people in black robes may be the most powerful people in the United States, even though you rarely see them and most citizens don't know their names.

Constitutional Self-Government
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Constitutional Self-Government
Christopher L. Eisgruber
Manufacturer: Harvard University Press
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Binding: Hardcover

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Lectures on the History of Political Philosophy

ASIN: 0674006089

Book Description

Most of us regard the Constitution as the foundation of American democracy. How, then, are we to understand the restrictions that it imposes on legislatures and voters? Why, for example, does the Constitution allow unelected judges to exercise so much power? And why is this centuries-old document so difficult to amend? In short, how can we call ourselves a democracy when we are bound by an entrenched, and sometimes counter-majoritarian, constitution?

In Constitutional Self-Government, Christopher Eisgruber focuses directly on the Constitution's seemingly undemocratic features. Whereas other scholars have tried to reconcile these features with majority rule, or simply acknowledged them as necessary limits on democracy, Eisgruber argues that constitutionalism is best regarded not as a constraint upon self-government, but as a crucial ingredient in a complex, non-majoritarian form of democracy. In an original and provocative argument, he contends that legislatures and elections provide only an incomplete representation of the people, and he claims that the Supreme Court should be regarded as another of the institutions able to speak for Americans about justice. At a pivotal moment of worldwide interest in judicial review and renewed national controversy over the Supreme Court's role in politics, Constitutional Self-Government ingeniously locates the Constitution's value in its capacity to sustain an array of institutions that render self-government meaningful for a large and diverse people.

Restoring the Lost Constitution: The Presumption of Liberty

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innovative and interesting
Yes Virginia, there is a constitution
Head & Shoulders above all other Constitutional Scholars
Splendid
Toward a jurisprudence of original meaning

Restoring the Lost Constitution: The Presumption of Liberty
Randy E. Barnett
Manufacturer: Princeton University Press
ProductGroup: Book
Binding: Hardcover

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ASIN: 0691115850

Book Description

The 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.

Customer Reviews:

innovative and interesting.......2007-04-03

I found this book very enjoyable as well as informative. I learned more from this book than I did from an enitre semester of constitutional law in law school. Barnett has a way of brillantly explaining a case, good and bad, like no one else could. He made me look at decisions, which I have always assumed were correct, in an entirely new way. For example, his anaylsis of McCulloh v. Maryland really demonstrated the flaws of Chief Justice Marshall's logic. His historical anaylsis is vivid, entertaining, and educational. However, I did find some flaws in his research. He doesn't present both sides of the issue. Espically concering the 9th Amendment, there is strong evidence for a multitude of meanings. Yet he only presents his own, and does not adequately expalin why he's is superior. His interpretation of the commerce clause suffers the same problem. He concludes, rather quickly, that commerece only includes economic actvities. The problem with this is it is directly contradicted by prominent constitutional scholar ahkil Amar. Amar argues that commerce is the more general relations between the enities stated in Art. 1 Clause 8. This interpretation expalins the power the federal government has over tribes. I do not see how Barnett's interpretation explain this power, especially since Barnett makes it very clear that he does not believe the federal government has inherent power. It's a major flaw in this otherwise brillant book. Finally, his "presumption of liberty" might be too drasitic of a change for the American public to take and compromise the crediabilty of the court. However, his arguement that his method would add to the court's crediabilty is fairly convicing. I would say that I like the book despite the flaws, but in truth, I like the book largely because of the flaws.

Yes Virginia, there is a constitution .......2006-08-30

In this excellent book, an academic page turner, Barnett resurrects and reconstructs the commerce, necessary and proper clause and the ninth amendment and the privileges and immunities clauses as meaningful, judicially enforceable restrictions on
governmental powers. Barnett takes rights seriously and points out that the Bill of Rights is merely the tip of an actually enacted iceberg of rights that the courts are bound by the constitution to enforce--but do not. Barnett calls on courts to do their duty by these clauses and points out that the refusal of courts, to meaningfully protect rights in the name of judicial restraint is anything but. Barnett exposes the narrowness of the current debate between so called judicial conservatives and judicial liberals by pointing out that all now subscribe to a much narrower definition of rights that the constitution actually provides. For Barnett much of importance in the constitution has simply been discarded by the courts because it gets in the way of the kind of government people now think they want. The great service of Barnett's book is that by showing what has been lost or actually deliberately thrown away he shows the way back if we choose to take it. The larger question is not only whether we should take rights as seriously as the framers but whether we should take written constitutions as seriously as they did as absolutely essential to the preservation of liberties.

Head & Shoulders above all other Constitutional Scholars.......2006-01-01

Having read most of the current batch of constitutional scholars, and while respectful of their opinions, I believe that none reach the level of Barnett's understanding of the Constitution and the importance his thesis is to all Americans if we want to protect our freedoms from those internally who would deny we even possess rights as individuals.

Barnett starts off by providing a strong, though subjective, philospohical basis for the legitimacy of government power over citizens claiming they are truly free. Because this is the only subjective topic reviewed in the book, I've been striving since he published this book to find evidence that rationally or empirically defeats his thesis, I've found none nor have I found anyone with a superior thesis, which is, paraphrased: Legitimate government power over a free populace acheives legitimate consent only as long as its power protects the greater rights of its populace over the lesser rights of others. For example, police power protecting citizens' property against those that would steal other's property.

Barnett goes on to make a bullet-proof case that original meaning is the only legitimate interpretative approach and using that approach, what does the constitution mean, especially in terms of what rights we reserve and what powers to gov't have we granted.

Constitutionalist theorists like Bork who claim originalist roots that claim we need to use framer intent as filtered by him because the framers didn't provide ample evidence of their meaning is smashed by Barnett. Not only does Barnett provide convincing empirical evidence of the original meaning of the Constitution and many of its important principles and clauses; Barnett even provides ample evidence of the meaning as interpreted by the State Ratifying committees and the understanding by the populace as expressed in the newspapers of the day. I won't divulge here what Barnett finds since i highly recommend purchasing the book and finding out for yourselves.

While reviewing the original meaning of the constitution, Barnett provides a surprising twist, he provides very few modern cases that compare the court's rulings to the original meaning. For me at least, that provided me with little chance to stereotype Barnett into an ideological camp. I found this initially frustrating because it forced me during the reading of this section of the book to spend more thinking time understanding his points, but at the end of this section, I was rewarded by embracing the concepts he promotes on their merit by not allowing me to filter his arguments through my own ideological prism.

The end of the book does have Barnett reviewing many modern consitutional issues and applying the original meaning as found by Barnett against these cases. The reader will be surpised when media pundits label Barnett as a conservative scholar, as he often is, when in fact his thesis easily destroys any justicification social conservatives have to leverage government power over the rights we reserve as free people.

The reader will also be surprised as to why Democrats don't embrace these concepts more since their political platform to protect individual rights is so well supported by Barnett's findings when studying our founding. I can only speculate that by embracing Barnett's positions, the Democrats would have to fight to increase government power through constitututional amendments to legitimatize regulatory power to protect the environment or business beyond commerce. My only criticism of his book is that he didn't address the Roe and Casey rulings, where I would be most interested in understanding his position - I can only speculate that he resisted commenting in order to not be stereotyped and labeled.

In summary, if you buy one book to better understand the current culture war over the legitimate rights of citizens relative to the granted power we've extended government, this is the book. If you are a dedicated student of constitutional law, than I guarantee this book will become of the most valuable books in your collection - Barnett is that good.

Splendid.......2005-09-12

"Imagine holding up a copy of the Constitution and seeing empty holes in the parchment where these passages once appeared-or seeing ink blots over them."

In the preface, Professor Barnett describes his disillusionment with the United States Constitution, how it drove him away from the field of constitutional law, and then describes how he was brought back. The early chapters are an attempt to bring the reader back with him. Borrowing the arguments of Lysander Spooner, a 19th century abolitionist, he proceeds to prove the Constitution illegitimate on traditional grounds and then builds it up again on a new foundation, the "Presumption of Liberty." The presumption of liberty is the antipode of the now-favored method of judicial review, the presumption of constitutionality (in short, when challenging legislation, the burden lies on the individual to prove that legislation is unconstitutional, and not on the government to prove that it is not). Drawing on theories of natural rights, he proposes a method of constitutional "legitimation."

After this prelude, Barnett goes on to concretely defend originalism (specifically, "original meaning" originalism, as opposed to "original intent": a dichotomy well explicated) as an attractive constitutional theory of interpretation, against critics ranging from Robert Bork to New Deal liberals. The groundwork laid, the major work of the book commences: discovery of the original meaning of the Constitution, or at least many of its pertinent parts, including most prominently the (forgotten) Ninth Amendment, the Fourteenth Amendment, the Interstate Commerce Clause, and the Necessary and Proper Clause. The conclusion will be unsurprising to many: the original meaning of the Constitution has been grossly distorted. In his words:

"For some political agendas to advance, the heart of the Constitution must be excised, and so it has been, clause by inconvenient clause, until the Constitution has been distorted and lost."

Throughout, Barnett writes accessibly and lucidly. Even those parts of the book one would expect to be most dry--the analysis of constitutional clauses by usage of contemporary sources, including dictionaries, issues of The Federalist, and period newspapers--vibrate. Despite the libertarian undercurrent, the book is never partisan: indeed, great pains seem to be taken to invite readers of all political stripes to come along. Only in the conclusion does one begin to sense the great weight of what's been written, and--in my case--feel the gratitude towards the author for writing such an interesting, excellent, and--certainly--heroic book.

Toward a jurisprudence of original meaning.......2005-03-05

What should we do with the Constitution? In this excellent work, Randy E. Barnett proposes a predominantly libertarian answer to that question. (I say 'predominantly' because Barnett is quite clear-eyed and honest in his recognition of the handful of nonlibertarian elements in the document.)

Barnett initially addresses the question why we should consider ourselves bound by the Constitution at all, since the idea that it really speaks for every single one of 'the People' for all time is clearly a fiction. His answer will surprise everyone but libertarians: we should regard ourselves as bound by the Constitution because, insofar as, and so long as it is used to enact those laws that preserve and protect our liberty rights.

On this foundation Barnett develops a theory of Constitutional interpretation based on 'original meaning' (carefully distinguished from 'original intent' as originally defended by Bork and Meese). The heart of his thesis is that, wherever possible, we ought to prefer a reading that comports with the public understanding of the Constitution at the time it was ratified (which may not, of course, be a precise match for the 'intent' of the framers). He has James Madison on his side here. (Of course a similar argument applies to the various Amendments as of the times _they_ were ratified, so Barnett's 'original meaning' isn't a haven for those who want to undo the Fourteenth Amendment.)

Barnett then applies this interpretive approach to the judicial power in order to demonstrate that judicial review -- specifically including the power to nullify unconstitutional laws -- was part of the original understanding of this power. This chapter is quite well argued and, in my view, altogether conclusive on the issue. It's also, unfortunately, quite necessary, because there are people calling themselves 'conservatives' who seem to think judicial review was conjured out of the ether in _Marbury v. Madison_ (1803). (Mark Levin's recent _Men In Black_, for example, is hopelessly muddled on this issue, as Levin fails to distinguish carefully among judicial review, a judicial veto, and judicial supremacy. See my review of that book for further criticism.)

Having established that judicial review is part of the original Constitutional scheme (and part of the Constitutional meaning of 'due process'), Barnett then applies his original-meaning methodology to determine just how the Supreme Court ought to interpret various portions of the Constitution in reviewing the legitimacy of legislative enactments. The Necessary and Proper Clause turns out, on his analysis, to delegate to Congress only the power to enact legislation strictly requisite for the exercise of its enumerated powers ('necessary'), and only to the extent that such legislation does not infringe liberty rights ('proper'). The Fourteenth Amendment's Privileges or Immunities Clause turns out to bind state governments to the entire Bill of Rights. (See Michael Kent Curtis's excellent _No State Shall Abridge_ for a fine analysis that reaches the same conclusion.) And the Ninth Amendment turns out to protect all liberty rights of any kind, whether enumerated or not.

Barnett is then able to arrive, in consequence, at his central thesis: the twentieth century's 'presumption of constitutionality' should be reversed, and the Supreme Court should conduct judicial review on the basis of a 'presumption of liberty'. Instead, that is, of presuming that (say) a piece of challenged Congressional legislation is Constitutional unless an opposing party can show otherwise, the initial burden should be on the government to show why such legislation _is_ 'necessary and proper'.

Barnett then applies his analysis to the Commerce Clause and the police powers of the states, concluding that the scope of each is far narrower than recent jurisprudence allows. A closing chapter looks at a few 'hard cases' (though hardly, of course, an exhaustive list).

The analysis is excellent throughout. As he did in _The Structure of Liberty_, Barnett has thrown down a gauntlet here and I can't imagine what a successful response might look like.

There are minor points I could nitpick. (For example, Rep. John Bingham, drafter of the original version of the Fourteenth Amendment, was from Ohio, not -- as Barnett says on p. 193 -- New York.) The index could also use a lot of work; a random spot-check turns up a number of problems. (For example, a reference to Richard Epstein that actually appears on p. ix is indexed for page xi; Michael Kent Curtis appears on pages 61, 62, 108, 115, 203, and 348 but is indexed only for p. 61; some references -- e.g. to Henry Veatch, whose excellent _For An Ontology of Morals_ Barnett cites on p. 83 -- aren't indexed at all; and a reference to Murray Rothbard on p. 346 is indexed for p. 246. And yes, 'anal-retentive' _does_ take a hyphen; why do you ask?)

More seriously, perhaps, I'd have liked to see a bit more analysis of 'hard cases' that are controversial even among those inclined toward libertarianism. Even on Barnett's understanding of the Ninth and Fourteenth Amendments (which I think is utterly correct), it's not clear that abortion falls within the scope of retained liberty rights (as the interests of another party are pretty obviously adversely affected). Even here, though, Barnett's analysis is of tremendous help in posing the question correctly, whatever one's views on the answer.

It's a brilliant book from start to finish and it's probably the single best volume of Constitutional legal theory currently available; naturally there's lots of really cool stuff in it that I haven't even begun to summarize here. It's also a wonderful antidote to the spate of recent 'conservative' Court-bashing literature that persistently misidentifies the problems and tosses out the Constitutional baby with the bathwater.

If the Constitution is of interest to you, don't miss this one. By the way, Barnett is also the coauthor of a brilliant _amicus curie_ brief submitted by the Institute for Justice in _Lawrence v. Texas_; look that up too.

Constitutional Revolutions: Pragmatism and the Role of Judicial Review in American Constitutionalism

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Constitutional Revolutions: Pragmatism and the Role of Judicial Review in American Constitutionalism
Robert Justin Lipkin , and Robert Justin Lipkin
Manufacturer: Duke University Press
ProductGroup: Book
Binding: Hardcover

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Book Description

In Constitutional Revolutions Robert Justin Lipkin radically rethinks modern constitutional jurisprudence, challenging the traditional view of constitutional change as solely an extension or transformation of prior law. He instead argues for the idea of “constitutional revolutions”—landmark decisions that are revolutionary because they are not generated from legal precedent and because they occur when the Constitution fails to provide effective procedures for accommodating a needed change. According to Lipkin, U.S. constitutional law is driven by these revolutionary judgments that translate political and cultural attitudes into formal judicial decisions.
Drawing on ethical theory, philosophy of science, and constitutional theory, Lipkin provides a progressive, postmodern, and pragmatic theory of constitutional law that justifies the critical role played by the judiciary in American democracy. Judicial review, he claims, operates as a mechanism to allow “second thought,” or principled reflection, on the values of the wider culture. Without this revolutionary function, American democracy would be left without an effective institutional means to formulate the community’s considered judgments about good government and individual rights. Although judicial review is not the only forum for protecting this dimension of constitutional democracy, Lipkin maintains that we would be wise not to abandon judicial review unless a viable alternative emerges.
Judges, lawyers, law professors, and constitutional scholars will find this book a valuable resource.

The Supreme Court Compendium: Data, Decisions, and Developments

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The Supreme Court Compendium: Data, Decisions, and Developments
Jeffrey A. Segal , Harold J. Spaeth , and Thomas G. Walker
Manufacturer: CQ Press
ProductGroup: Book
Binding: Hardcover

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ASIN: 1568025920

The Rehnquist Court and the Constitution

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Good but not great
excellent book
Unfortunate addition to Yarbrough's resume
Subliminally Biased, but well researched
Well written peek behind the Supreme Court bench

The Rehnquist Court and the Constitution
Tinsley E. Yarbrough
Manufacturer: Oxford University Press, USA
ProductGroup: Book
Binding: Paperback

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ASIN: 0195146034

Book Description

At the end of the 2000 presidential election, the nation saw firsthand the power of the Rehnquist Court when, for the first time in U.S. history, the Supreme Court took a definitive role in the election process. Now, Tinsley Yarbrough provides a comprehensive look at today's Supreme Court Justices and their record. An accomplished biographer, Yarbrough offers incisive portraits of the nine justices who now sit on the high bench, and tellingly reviews their nomination hearings. But the heart of the book is a systematic exploration of the Court's record in such areas as government power, economic regulation, and criminal justice. In decision after decision, the author discusses the various justices' opinions, arguments, and legal theories; he also offers his own analysis--including a sharp critique of the decision to allow the Paula Jones lawsuit to move forward. Thoughtful, wide-ranging, and intelligently written, this book will stand as the finest study of the Rehnquist Court for years to come.

Customer Reviews:

Good but not great.......2004-05-13

In this work Tinsley Yarbrough seeks to summarize the work of the Rehnquist Court (up until 2000) concerning the seven dominate issues of constitutional adjudication. Yarbrough examines subjects such as governmental power, freedom of expression and religion, criminal justice, and unenumerated rights. Begining with a description of the appointments of the justices who conservatives hoped would finally kill the last remnants of the liberal Warren Court era, Yarbrough examines each of the most important issues and concludes that the Rehnquist Court has failed, at least generally, to achieve this hope. Instead, it has walked something of a more moderate role, sometimes limiting precedent but often reaffirming the core principles of the liberal activism of old.

The work is good but it should not be your first introduction to the Supreme Court. It is densely packed with information and is probably best for a reference work to use when you reach a new area of coursework. My biggest problem with Yarbrough's work here is that it is great at synthesizing the many cases of the Rehnquist era but it is light on meaningful analysis and criticism of those cases. Description only goes so far and I think the book would have benefited from a stronger analytical view of the 14 years (then) of the Rehnquist Court.

excellent book.......2001-05-19

i think if you go through this book you would realise justice is not blind but very racialy prejudiced i would prefer straight shooter brilliant jusice scalia,excellent book

Unfortunate addition to Yarbrough's resume.......2000-10-05

Mr. Yarbrough has a fine reputation as a leading judicial biographer: his previous works on Hugo Black, and the two Justices Harlan were impressive, detailed and interesting. With "The Rehnquist Court" he pumps out a minor achievement and a heavily slanted analysis of recent Constitutional decisions. There's no denying the hostility toward conservative/strict-constructionist judges and viewpoints and this, as a previous poster noted, deeply taints the work overall. In addition, Yarbrough's style (which has always tended to the dry and tedious) is here especially mind-numbing: the interesting constitutional issues under debate are hidden amongst irrelevant facts and long-winded prose. As a whole, I found the book very disappointing and the steep price tag wholly unwarranted.

Subliminally Biased, but well researched.......2000-09-07

In terms of informational content and comprehensiveness, this text is quite good. Yarbrough cites many sources and gives the essence of most of the opinions on the cases he covers. That is to say that a given case may have three or four opinions, as justices can agree on the same verdict for different reasons, and Yarbrough does a fine job of explaining each on most of the decisions covered. My huge qualm with the work is the simple fact that Yarbrough commits one of the biggest sins possible in scholarly work: he sharply biases his work without seeming to. His language is subtly biased, and an unwary reader could easily be manipulated.

Well written peek behind the Supreme Court bench.......2000-06-22

The Rehnquist Court and the Constitution is not light reading, but for those who are interested in the high court, it is good reading. Yarbrough provides a concise examination of each Justice, including his or her background, confirmation hearing, and the political climate of that hearing. He captures the essence of each Justice as both jurist and human being. He then allows the reader to infer the interaction of those philosophies, personalities and egos on the direction that he perceives for significant constitutional issues. He does this without much, if any, editorial comment, though at times his own constitutional philosophy appears to peek out just a bit. Although this book is a bit heavy for anyone other than a constitutional scholar, it is well worth reading. Any student, teacher, judge, lawyer or just plain "court watcher" will appreciate this glimpse into the most secret and perhaps most powerful branch of our government.

Original Intent and the Framer's Constitution

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A Strong but Incomplete Assault on Originalism
Superbly thorough argument
Bravo!
Original inten? Whose original intent? Who intended what?
Lays waste to the jurisprudence of "original intent"

Original Intent and the Framer's Constitution
Leonard W. Levy
Manufacturer: Ivan R. Dee, Publisher
ProductGroup: Book
Binding: Paperback

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ASIN: 1566633125

Book Description

Rejecting the views of both left and right, Mr. Levy evaluates the doctrine of original intent by examining the sources of constitutional law and landmark cases. Merciless and brilliant. In fascinating detail...Mr. Levy demonstrates that there can be no such animal [as original intent]. --Anthony Lewis, New York Times Book Review

Customer Reviews:

A Strong but Incomplete Assault on Originalism.......2007-04-10

`Original Intent and the Framer's Constitution' is a collection of essays shoddily fitted together to make what are essentially two books. The first, discusses the Framer's (specifically, the members of the Constitutional Convention and the State Ratifying Conventions) ideas about various constitutional issues, including the President's powers, the Institute of Judicial Review, and the Bill of Rights. The second book is an attack on Originalist Jurisprudence, and particularly of the right-wing Originalists like Robert Bork and Edward Meese.

The essays about the original intent of the Framers are frankly quite dull. I don't think that's Levy's fault. What he does is collect basically every recorded reference about every issue he raises. That means we get endless citations from Madison, Mason, Hamilton, Jefferson, and scores of lesser known luminaries. The approach, mostly devoid of a narrative, does not make for lively reading.

Most impressive for me was the insight into the inner working of the Constitutional Convention. It is striking how much attention the Framers devoted to some issues (such as the President's powers on foreign relations) and how little attention was spent on some other parts (such as the clause forbidding the various states from interfering with Contracts). When reading about the Convention, one is again amazed how a handful of men - 39 finally signed the Constitution - created one of the most enduring, workable schemes for a government. Today, the equivalents of Madison and Hamilton would have had dozens of assistants and specialists about any issue under the sun - but in 1787, they wrote the entire basic law of the United States by themselves.

The story of how The United States got a Bill of Right is also interesting. A Bill of Right was left out of the constitution for no particularly good reason. Its absence proved the best argument against the constitution from the anti-Federalists. But there was a twist - the anti-Federalists didn't really want a Bill of Rights. Their real beef was with the Constitution's power over states, not over people. So when Madison actually brought forth a Bill of Rights, the Anti-Federalists did a volte-face and opposed it, realizing that its passage spelled the end of their states' rights platform.

Levy's other book is a strong attack on the new, Conservative Originalist movement. Although Levy can be harsh with Liberals - he accuses Justice William Brennan, the Liberal Icon, of "arrogance beyond belief" (p. 372) - his real targets are Conservative Originalists, particularly Robert Bork. Originalists claim that the Constitution has one, fixed meaning, given to it at the time of ratification, and that judges have to decipher what that intention was. Levy sees them as hypocrites, who promote sectarian agenda in the guise of impartial, Originalist rhetoric.

Levy makes some strong attacks about Originalism: First, he notes that Originalist Judges do a really bad job at it. What he calls "law-office" history is merely a collection of quotes, often taken out of context, to support one's position. As West Virginia's Chief Justice noted, people who believe in "historical scholarship as applied to the Constitution also probably believe in the Tooth Fairy and the Easter Bunny" (quoted on p. 320).

Furthermore, it's not clear whose opinion we should take into account. The Framers in the Philadelphia convention? The various ratifying conventions of the original 13 states? There are numerous problems with accepting each of these as authorities - for start, they rarely if ever had one mind on any question. Additionally, the documentation of the debates and discussions are very incomplete, so a full appraisal of the participants' views is impossible. Beyond that, the very act of searching for answers to specific questions in the historical record politicizes the Historian's quest. The result would make real history into "Law Office" history - marshalling evidence to support one's preexisting conclusion. This happened to first class historians while making their brief for "Brown vs. Board of Education". The idea that the judicial process is able to discover historical truths is doubtful.

Furthermore, it seems that at least some of the Framers of the Constitution wanted future generations to give their own text new meanings. Indeed, if one accepts Judicial Review of Federal legislation (as the Framers did not consistently do), then reading new meanings into such imprecise terms as "due process" and "cruel and unusual" is practically called for.

Finally, what we know about the Framer's intent envisions a United States radically different from modern day America. The changes cut across the Conservative/Liberal divide. The Framer's United States, 230 years out of date, imagines a completely different world, one that neither Liberals nor Conservatives could live with.

But Levy's attack is incomplete. First, Levy ignores attempts to read the constitution based on "Original Meaning" rather then "Original Intent" - that is, the meaning the constitution would have to a reasonable 18th century American Citizen. There are problems with this approach, but Levy hardly mentions it. Furthermore, Levy's description of the failures of Originalism in practice does not mean that it must fail in theory. To prove that all proponents of Originalism fail does not necessarily mean that Originalism as a doctrine must fail, at least for some cases.

Worse of all, Levy doesn't offer an alternative to Originalism. Do we really have to have completely unconstrained Justices? Are there no bounds to possible interpretations of the US Constitution? Levy hints that there may be, but fails to offer a positive program. I think that various approaches, including Ronald Dworkin's Rights based jurisprudence, Ely's ideas about securing democratic rights, and Israeli Supreme Court Justice Aaron Barack's Contextualism offer alternatives to Originalism, which may be more effective at constraining judges. As someone who leans towards Pragmatism, I think it may also effectively (if imperfectly) constrain judges. Regardless of what path one may chose, it is necessary to counter Originalism with more then nihilism.

Superbly thorough argument.......2004-01-04

Levy's book is an overwhelmingly good source of information on the intent of the framers of the Constitution and on the idea that original intent is not something we should rely on. Levy uses exhaustive examples on many topics ranging from jurisprudence, the Bill of Rights and the 1st, 4th, 5th and 9th Amendments. I do have a few critiques on the book though.

1- This book appears to be more a collection of essays. Many of the chapters repeat what was previously and exhaustively discussed in other chapters as if the others chapters did not exist.
2- Levy does not delve into the issue of why the founding fathers feared establishments in regards to religion. England used the Anglican church to get a tighter grip on the colonies. Many Anglican parsonage positions were given as rewards (or punishments) to members of the English government. Taxes went to pay for salaries of these appointees while they did no real work. Many were never seen in the church at all. Also, England used the church to excise taxes from the colonies. None of this was discussed in the section of the establishment clause.
3- Many of the terms are discussed before they are defined. This causes confusion while reading. One such term is ex post facto laws. This is discussed at length early on, but not defined until the 5th or 6th chapter. For someone with little legal background, this is troublesome.

Despite these critiques, this was a superb addition to my library. I would recommend it for anyone who is interested in the ideas of the founders and what they were thinking while they were at the Constitutional Convention.

Bravo!.......2003-10-25

There are a few books on strict interpretationlist theory about the Constitution by authors with historical credibility but Levy is a constitutional scholar so this is a respectable opinion.

This book was an exciting find. "A jurisprudence of original intent" is finally discussed here in an historically and compelling way. The author draws conclusions that are pragmatic and understandable. There were so many individuals who contributed to the authorship of the Constitution that there are as many different intents as there were contributing authors.

I think one unequivocal, absolute about our brilliant founding fathers is that they believed in freedom of speech and imagination free from oppression. This book demonstrates that there are two sides to this never-ending debate on jurisprudence boundaries. If you have read books and articles that seem compelling regarding "strict interpretation" then treat yourself to this book. The author digs into to the document to find answers on intent. His essays provide a well rounded tour of prevailing opinions during the historical infancy of the U.S. The book can help any one interested in understanding the issues of the debate make an educated decision based on both sides of the issue.

Original inten? Whose original intent? Who intended what?.......2003-10-23

It has always seemed bizarre to me how the best arguments against original intent are made by...historians! This book does many things, the least of which is to offer a very penetrating argument againt original intent. It is a book, first and foremost, exploring the history of American contitutionalism. Was judicial review intended? How do we make sense of the limilts (if there are any) of the contract clause? And what in the world does the ninth amendment actually mean??

Levy has a true historians eye and quite simply, is great at what he does. In this collection of loosely connected essays exploring the histories of these and other problems in our constitution's history, he points out what judges should've known all along; there are as many intents as their were framers, ratifiers, and Supreme Court Justices. What's more, much of the 'history of intent' is simply a jumbled mess; ambiguuos, imcomplete, and imprecise.

The best essays of course are those focusing on whether original intent is a.) what was intended by the founders (isn't that ironic?) and b.) the doctrine we should actually be using. One thing I've learned in my study of the Constitution is that judges, as smart as they are, are simply bad historians. From Dred Scott to Bowers v. Hardwick, judges have botched history - whether deliberately as in Scott, or not, as in Bowers. One Justice Levy is particularly hard on is (one of my judicial heroes) Hugo Black - and for good reason! Black's history is narrow, reflects an overconfidence in the founders that they never even had of themeselves, and simply (particurly with the fourteenth amendmen) gets a lot of it wrong. He is hard on Robert Bork for just this reason.

In summary this is a great book. Levy doesn't take too many sides here, but is probably something akin to a Jeffersonian Democrat. He is rigorous, mindful of the burden of his task as historian, and illuminating. For another great argument by a historian on the difficulties of original intent, read Rakove's "Original Meanings". For an argument in favor of OI, the standard is Bork's "Tempting of America". Enjoy!

Lays waste to the jurisprudence of "original intent".......2001-05-02

Without a doubt, Leonard William Levy has produced the finest argument against the doctrine of original intent that I have ever read. As a liberal working in Washington, DC, I have long been bothered by conservative criticism that our judiciary has been over-run by "judicial activists." In my attempts to understand the issue, I have read many accounts of what is supposedly wrong with the idea of an "evolutionary constitution," and found them interesting and compelling and was beginning to think that I had made a terrible mistke in terms of my political outlook.

Granted, much of that can be accounted for by the fact that the only things I was able to find about "original intent" were written by the likes of Robert Bork and Antonin Scalia, both of whom subscribe to this theory. But then I discovered Levy's book and found that the theories of Bork et al. were not all they were cracked up to be.

Levy is a Pulitizer Prize winning historian who examines the birth of our Consititution in amazing detail, citing the Constitutional Convention, the Federalist Papers, Anti-Federalist pamphlets, state constitutions and ratifying conventions and presents a clear view of the state of our nation even as if was being formed. His insight is so far beyond the pseudo-history offered up by Bork and his ilk that it is almost embarrassing to think that men of such intellects could be so sorrily mistaken. With chapters on the main areas of debate within the Constitution iteself, and others covering the Frist, Fourth, Fifth and Ninth Amendments, Levy gives us a very clear picture of just what has happening at the time the Constitution was being debated and ratified.

The three final chapters are, by far, the most impressive deconstruction of the theory of "original intent" I have ever encountered. In fact, I would recommend that the reading of these final chapters alone offers up more insight and better arguments than anything else ever written.

While at times the reader can get bogged down in details, it is the fact that Levy knows and includes them all that makes this work so extremely valuable. The writing is clear and entertaining and Levy has no problem telling those who subscribe to the doctrine of "original inent" that they have "the historical imagination of a toad."

Book Description

Here, Philip Bobbitt studies the basis for the legitimacy of judicial review by examining six types of constitutional argument--historical, textual, structural, prudential doctrinal, and ethical--through the unusual method of contrasting sketches of prominent legal figures responding to the constitutional crises of their day. Examines the characteristic types of constitutional argument by which judicial review is carried out.

Customer Reviews:

on of the best books on judicial review.......2005-06-30

This is an excellent book for scholars interested in judicial review. Bobbitt breaks down the typology of constitutional interpretation into six categories.

It is not written in a manner that is accessible for the casual reader, but if you are interested in how constitutional interpretation is approached from different philosophies - what separates a Justice Frankfurter from a Justice Black, or a Scalia from Stevens -- then I would highly reccomend this book.

A Post Modern Mess.......2000-12-13

At first Constitutional Fate looks much like a typical anthology of the most significant modes of constitutinal argument, for this I must admit the book does a fairly good job. The problem comes at the end; where we must endure an unconnected attempt to give the book purpose. The authors argument is essentially that there is no argument.

Now I must admit I am reading this for a take home final so perhaps I am just a little jaded. For one minuete I think that there is nothing but brilliance in these last few pages; only for seconds later to conclude that it is all just a bunch of smoke.

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