Words that Bind: Judicial Review and the Grounds of Modern Constitutional Theory

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Westview Press, 1995 - Law - 236 pages
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The words of the U.S. Constitution limit the possibilities of political action: they bind us in certain ways. How they bind us, however, depends upon how these words are interpreted and upon the distinctively American practice of judicial review.In Words That Bind, John Arthur examines conflicting theories of constitutional interpretation and judicial review, arguing that each of the dominant legal approachesófrom original intent to law and economics, from legal pragmatism to critical legal studiesórests on a distinct philosophical conception of democracy.Turning to recent work in political philosophy, Arthur explores the important but oft-ignored implications of both utilitarianism and social contract theory for constitutional interpretation and judicial review. He addresses such important and contested issues as the justification of rights, the rule of law, popular consent, equality, and feminist constitutional theory. The book makes an especially significant contribution through the fruitful interaction of two traditions: constitutional jurisprudence and contemporary political theory.Words That Bind presents a careful and nuanced treatment of a set of ideas and institutional forms absolutely central to U.S. democracy. Arguing that neither legal theory nor political philosophy can proceed independently of the other, Arthur illuminates both topics as no other recent author has.
  

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Contents

Original Intent
7
Perfecting the Democratic Process
45
Critical Legal Studies and the Denial of Law
75
Economic Analysis
114
Desires Experiences and the Problems of Measurement
120
Precedent History and the Problems
132
Utilitarianism Dignity and Procedural Fairness
140
Notes
191
About the Book and Author
227
Copyright

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Page 150 - They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth ; that without free speech and assembly discussion would be futile ; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people ; that public discussion is a political duty; and that this should be a fundamental principle of the American government.
Page 12 - The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles supposed to have been long and well established to decide it.
Page 12 - Those then who controvert the principle that the Constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution and see only the law.
Page 150 - Those who won our independence believed that the final end of the state was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty.
Page 83 - a liberty for every one to do what he lists, to live as he pleases, and not to be tied by any laws"; but freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it...
Page 11 - The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.
Page 25 - Then, no man can, by natural right, oblige the lands he occupied, or the persons who succeed him in that occupation, to the payment of debts contracted by him. For if he could, he might, during his own life, eat up the usufruct of the lands for several generations to come ; and then the lands would belong to the dead, and not to the living, which is the reverse of our principle.
Page 30 - Can we seriously say, that a poor peasant or artisan has a free choice to leave his country, when he knows no foreign language or manners, and lives, from day to day, by the small wages which he acquires? We may as well assert that a man, by remaining in a vessel, freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean and perish, the moment he leaves her.
Page 21 - Has it not, on the contrary, invariably been found that momentary passions, and immediate interests, have a more active and imperious control over human conduct than general or remote considerations of policy, utility, or justice ? Have republics in practice been less addicted to war than monarchies ? Are not the former administered by men as well as the latter ? Are there not aversions, predilections, rivalships, and desires of unjust...
Page 192 - States authorizes the supreme court " to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.

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About the author (1995)

John Arthur is professor of philosophy and director of the program in Philosophy, Politics, and Law at Binghamton University. He is author of The Unfinished Constitution and coeditor of Campus Wars: Multiculturalism and the Politics of Difference (WestviewPress 1995).

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