In defense of the text: democracy and constitutional theory

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Rowman & Littlefield, 1991 - Law - 224 pages
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In this book, Leslie Friedman Goldstein presents an extended argument for the kind of constitutional theory that should guide American judges. Writing in a clear prose accessible to the general reader, she advocates a particular version of textualism, and defends it in terms of the regime structure set forth in the Constitution and the premises of political theory that underlie that regime. Goldstein's moderate version of textualism does not expect a judge to find every principle of constitutional law to be spelled out word for word in the Constitution. As John Marshall noted, and as every constitutional law professor has repeated over the years, "We must never forget that it is a Constitution we are expounding". So, Goldstein's textualism calls on judges to ask what general principle of law is suggested in the language of the text as considered in light of the structure of the document and in light of the structure of government the Constitution sets forth. Further, judges need to adapt constitutional principles to changes that arise in society. A principle distinguishing "unreasonable searches and seizures" by whether or not private homes were invaded physically by police needs to be adapted to the era of electronic surveillance. A principle forbidding invidious racial discrimination as a violation of "the equal protection of the laws" has to be expanded with society's increasing capacity to understand which public measures carry an invidious impact. Beyond defending a textualist approach, Goldstein critiques a particular reading of the constitutional text increasingly popular among contemporary scholars, who read certain sections of the Constitution to assign to American judges thejob of deciding what are, or ought to be, the fundamental rights of Americans, in a way that leaves it open to judges to uphold unspecified rights--rights that the Constitution mentions neither explicitly nor by implication. In Defense of the Text argues that when judges announce "fundamental rights" that are nowhere implied in the constitutional text, they pervert the judicial function and usurp the legislative function, as those roles are contemplated in the structure of government that the Constitution establishes.

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About the author (1991)

Leslie Friedman Goldstein is professor of political science at the University of Delaware. She is the author of The Constitutional Rights of Women, also published by the University of Wisconsin Press.