Justice in Plainclothes: A Theory of American Constitutional Practice

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Yale University Press, Oct 1, 2008 - Law - 272 pages
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In this important book, Lawrence Sager, a leading constitutional theorist, offers a lucid understanding and compelling defense of American constitutional practice. Sager treats judges as active partners in the enterprise of securing the fundamentals of political justice, and sees the process of constitutional adjudication as a promising and distinctly democratic addition to that enterprise. But his embrace of the constitutional judiciary is not unqualified. Judges in Sager’s view should and do stop short of enforcing the whole of the Constitution; and the Supreme Court should welcome rather than condemn the efforts of Congress to pick up the slack.

Among the surprising fruits of this justice-seeking account of American constitutional practice are a persuasive case for the constitutional right to secure a materially decent life and sympathy for the obduracy of the Constitution to amendment. No book can end debate in this conceptually tumultuous area; but Justice in Plainclothes is likely to help shape the ongoing debate for years to come.

 

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Contents

Introduction The Puzzle of Our Constitutional Practice
1
Chapter 1 Accounts of Our Constitutional Practice
12
The Burdens of Originalism
30
Chapter 3 EnactmentCentered History as an Originalist Supplementation of the Text
42
Lean Middling and Thick
58
The JusticeSeeking Account of Our Constitutional Practice
70
Chapter 6 The Thinness of Constitutional Law and the Underenforcement Thesis
84
Chapter 7 The Conceptual Salience of Underenforcement
93
Chapter 8 The Domain of Constitutional Justice
129
Chapter 9 The Birth Logic of a Democratic Constitution
161
Chapter 10 Democracy and the JusticeSeeking Constitution
194
Conclusion
222
Notes
227
Index
241
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