Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations

Pirmais vāks
University of Chicago Press, 2004. gada 1. marts - 219 lappuses
Irreverent, provocative, and engaging, Desperately Seeking Certainty attacks the current legal vogue for grand unified theories of constitutional interpretation. On both the Right and the Left, prominent legal scholars are attempting to build all of constitutional law from a single foundational idea. Dan Farber and Suzanna Sherry find that in the end no single, all-encompassing theory can successfully guide judges or provide definitive or even sensible answers to every constitutional question. Their book brilliantly reveals how problematic foundationalism is and shows how the pragmatic, multifaceted common law methods already used by the Court provide a far better means of reaching sound decisions and controlling judicial discretion than do any of the grand theories.

No grāmatas satura

Saturs

1 Of Law and Latkes
1
Robert Bork and Other Originalists
10
3 The Formalist Crusade of Antonin Scalia
29
4 Richard Epstein and the Incredible Shrinking Government
55
5 Akhil Amar and the Peoples Court
75
6 Bruce Ackermans Magic Amendment Machine
97
7 Ronald Dworkin and the City on the Hill
122
8 Dethroning Grand Theory
140
Appendix
169
Notes
171
Index
203
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Populāri fragmenti

199. lappuse - The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or that the Legislature may alter the Constitution by an ordinary act.
196. lappuse - Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, ... or national, ... or racial minorities. . . .; whether prejudice against discrete and insular minorities may be a special condition, which lends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial 'inquiry.
19. lappuse - Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights ; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive ; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.
19. lappuse - They may, however, be all comprehended under the following general heads; protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.
117. lappuse - I shall ask the Congress for the one remaining instrument to meet the crisis — broad executive power to wage a war against the emergency as great as the power that would be given to me if we were in fact invaded by a foreign foe.
26. lappuse - If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein If there are any circumstances which permit an exception, they do not now occur to us.
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199. lappuse - The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten the Constitution is written. To what purpose are powers limited and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained...

Par autoru (2004)

Daniel A. Farber is the McKnight Presidential Professor of Public Law, Henry J, Fletcher Professor of Law, and associate dean for research and development at the University of Minnesota. Suzanna Sherry is the Cal Turner Professor of Law and Leadership at Vanderbilt University. Each is the author of numerous books.

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