Constitutional Interpretation: Illusion and Reality

Front Cover
Greenwood Publishing Group, 2001 - Law - 266 pages

This study analyzes the process of constitutional interpretation, that is, the methodology by which the Supreme Court goes about interpreting the Constitution, and offers a comprehensive view of constitutional law through the lens of history, political science, and jurisprudence. Shaman examines the practice of creating meaning for the Constitution, the dichotomy of legal formalism and realism, the levels of judicial scrutiny, the perception of reality, and the puzzle of legislative motive. While the book traces the historical development of constitutional law, its main focus is on modern jurisprudence, including analyses of the major themes of constitutional interpretation developed by the Warren, Burger, and Rehnquist Courts.

Shaman details the Warren Court's move to a more realistic jurisprudence and its development of a multi-level system of judicial review that has become increasingly more complex under the Burger and Rehnquist Courts. He critiques the Supreme Court's reversion in recent years to an old-fashioned formalistic jurisprudence and the growing tendency of the Court to look to the past rather than to future to interpret the Constitution. The book also includes discussion of recent major doctrinal developments such as constitutional theory underlying Supreme Court decisions on gender discrimination, discrimination on the basis of sexual preference, the right to die, abortion, and freedom of speech.

 

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Contents

Constitutional Creativity
1
The Historic Foundation of Constitutional Creativity
3
The Theoretical Foundation of Constitutional Creativity
10
The Political Foundation of Constitutional Creativity
20
Conclusion
25
Formalism v Realism
35
The Nature of Categorization
36
The Categorical Illusion
39
The Manipulation of Constitutional Fact and the Levels of Scrutiny
126
Conclusion
136
The Puzzle of Legislative Motive
143
The Tainted Heritage of Assessing Legislative Motive
146
Why Legislative Motive Supposedly Is Irrelevant
148
Why Should Motive Matter?
154
When Legislative Motive Is Relevant
155
Ascertaining Public Motive The Initiative and Referendum
164

The Nature of Balancing
44
Some Comparative Observations about Categorization and Balancing
46
Categorical Balancing
49
The Necessity of Balancing
50
Conclusion
58
The Levels of Scrutiny
71
Minimal Scrutiny
74
Upgrading Minimal Scrutiny
81
Strict Scrutiny
88
Intermediate Scrutiny
93
Forays into Weakening Intermediate Scrutiny
96
Justice Marshalls Sliding Scale of Scrutiny
102
Flaws in the MultiTier System
103
Restructuring the System
108
Conclusion
111
Constitutional Fact The Perception of Reality by the Supreme Court
121
The Manipulation of Constitutional Fact
123
Conclusion
166
Case Study The Theory of LowValue Speech
173
Development of the LowValue Speech Theory
175
Proposals to Add New Varieties of LowValue Speech
191
How HighValue and LowValue Speech Are Treated
198
Determining the Value of Speech
201
The Basic Validity of the LowValue Speech Theory
204
The LowValue Speech Theory and the Technique of Categorization
208
Conclusion
213
The Vicissitudes of the Fourteenth Amendment
227
Due Process of Law
230
Equal Protection of the Laws
237
A Surprising Revival
248
Table of Cases
257
Index
263
Copyright

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About the author (2001)

JEFFREY M. SHAMAN is Professor of Law at DePaul University./e He has concentrated much of his scholarship in the area of constitutional law, and his work analyzing the constitutional process has been published in law reviews across the country. He is also a national authority on judicial ethics and has written and lectured extensively on that subject. As a scholar and an attorney, Professor Shaman has participated in a variety of activities to promote human rights both in the United States and other nations.

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