Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law

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Cambridge University Press, May 31, 2010 - Law - 268 pages
This book stands against the current of judgments long settled in the schools of law in regard to classic cases such as Lochner v. New York, Near v. Minnesota, the Pentagon Papers case, and Bob Jones University v. United States. Professor Hadley Arkes takes as his subject concepts long regarded as familiar, settled principles in our law - "prior restraints," ex post facto laws - and he shows that there is actually a mystery about them, that their meaning is not as settled or clear as we have long supposed. Those mysteries have often given rise to illusions or at least a series of puzzles in our law. They have at times acted as a lens through which we view the landscape of the law. We often see what the lens has made us used to seeing, instead of seeing what is actually there. Arkes tries to show, in this text, that the logic of the natural law provides the key to this chain of puzzles.
 

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Contents

On the Novelties of an Old Constitution Settled Principles and Unsettling Surprises
13
The Natural Law Again Ever
43
Lochner and the Cast of Our Law
79
The Strange Case of Prior Restraint The Pentagon Papers
108
Near Revisited
150
The Saga of Frank Snepp and the New Regime of Previous Restraints
195
And Yet A Good Word on Behalf of the Legal Positivists
225
Conclusion and Afterword
254
Index
263
Copyright

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About the author (2010)

Hadley Arkes is Edward Ney Professor of American Institutions and Jurisprudence in the Department of Political Science at Amherst College. He is the author of six books, most notably First Things (1986), Beyond the Constitution (1990), and Natural Rights and the Right to Choose (Cambridge University Press, 2002). His articles have appeared in professional journals as well as the Wall Street Journal, the Weekly Standard, National Review, and First Things, a journal that took its name from his book of that title.

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