The Constitution of Judicial Power
"The United States Supreme Court", writes Sotirios A. Barber, "is being strangled by the combined forces of skillful enemies and incompetent friends, forces united in their inability either to grasp or to tolerate constitutional law as an independent moral voice in American politics". In The Constitution of Judicial Power Barber takes on these enemies and friends of the Court, attacking New Right ideas about constitutional interpretation as well as the ideas of liberals who have abandoned the classical constitutionalism that alone justifies Warren-era activism. Barber begins by reviewing the basic arguments of the New Right, with special attention to those of Robert Bork and Walter Berns. He then demonstrates that judicial activism, long scorned by the Court's bitterest critics, is part of a constitutional philosophy deeply rooted in The Federalist Papers - despite conservatives' frequent claims to know the framers' "original intent". Barber shows that New Right theorists, such as Bork, and establishment liberals, such as Ronald Dworkin, are moral relativists who cannot escape conclusions ("might makes right", for example) that could destroy constitutionalism in America. The best hope for American freedoms, Barber argues, is to revive classical constitutionalism - and he explains how new movements in philosophy today allow the Court's friends to do just that. Written in a lively and engaging style, The Constitution of Judicial Power is certain to provoke controversy among constitutional experts and general readers alike. Barber offers a lucid explanation and penetrating analysis of the current debate over the Court - and why it matters. He reaffirms that simple justice - and not"original intent" - undergirds the constitution of judicial power.
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The New Rights Assault on the Court
Judicial Review and The Federalist
The Constitutional Jurisprudence of Marshall and Some of His Admirers
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Amendment American antirealism antirealist approach argue argument aspirations assumptions Barber beliefs Berger Berns Berns's Bickel bill of rights Bork Bork's Chemerinsky claim classical theory clause conception Constitution Means constitutional theory controversial convention conventionalism conventionalist Court critics debate decision defend democracy deny due process Dworkin ends epistemological skepticism Epistemology equal protection ethics fact Federalist following passages refer Fourteenth Amendment framers Fried fundamental ibid intent Joseph Story judges judicial activism judicial power judicial review judiciary justice justify legal-moral legislative liberal majoritarianism Marshall Marshall's McConnell ment metaphysical Michael Moore modernist Moore moral realist moral skepticism nature nondeferential normative objective originalist Perry Perry's philosophic political position principles problem Publius Publius's question reason reject responsible Ronald Dworkin says scientific Stanley Fish statement stitution Story Story's substantive supremacy Taking Rights Tempting of America Thayer theory of judicial things tion tional tradition true truth values Waldron Walter Berns Wolfe