Words that Bind: Judicial Review and the Grounds of Modern Constitutional Theory
Westview Press, 1995 - Philosophy - 236 pages
"Words That Bind" presents a careful and nuanced treatment of constitutional interpretation and judicial review. By bringing constitutional theory and contemporary political philosophy to bear on each other, Arthur illuminates these topics as no other recent author has. Lightning Print on Demand Title
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Amendment argued argument assume attitudes citizens claim commitment conception Congress consider constitutional interpretation constitutionality contractualist conventional rights Critical Legal Studies decisions defended democracy democratic contractualism democratic government democratic proceduralism democratic processes desire dignity discussion economic elected equal protection example exercise experience fact fair framers free and independent human rights ideal observer theory impartiality important independent equals indeterminacy interpretive theory issues James Madison John Rawls judicial review legal rights legislative legislature limits majority Marbury maximize means ment moral rights neutral public discourse non-cognitivist original intent originalist person philosophical political process principles problems procedural justice proceduralist question Rawls reason reject religion religious requires review and constitutional role Ronald Dworkin rule of law rule utilitarian sense skepticism social contract society as equals strict scrutiny suggested Supreme Court tacit consent tion tional U.S. Constitution understanding University Press utilitarian judge utility values vote welfare
Page 150 - They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth ; that without free speech and assembly discussion would be futile ; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people ; that public discussion is a political duty; and that this should be a fundamental principle of the American government.
Page 12 - The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles supposed to have been long and well established to decide it.
Page 12 - Those then who controvert the principle that the Constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution and see only the law.
Page 150 - Those who won our independence believed that the final end of the state was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty.
Page 83 - a liberty for every one to do what he lists, to live as he pleases, and not to be tied by any laws"; but freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it...
Page 11 - The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.
Page 25 - Then, no man can, by natural right, oblige the lands he occupied, or the persons who succeed him in that occupation, to the payment of debts contracted by him. For if he could, he might, during his own life, eat up the usufruct of the lands for several generations to come ; and then the lands would belong to the dead, and not to the living, which is the reverse of our principle.
Page 30 - Can we seriously say, that a poor peasant or artisan has a free choice to leave his country, when he knows no foreign language or manners, and lives, from day to day, by the small wages which he acquires? We may as well assert that a man, by remaining in a vessel, freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean and perish, the moment he leaves her.
Page 21 - Has it not, on the contrary, invariably been found that momentary passions, and immediate interests, have a more active and imperious control over human conduct than general or remote considerations of policy, utility, or justice ? Have republics in practice been less addicted to war than monarchies ? Are not the former administered by men as well as the latter ? Are there not aversions, predilections, rivalships, and desires of unjust...
Page 192 - States authorizes the supreme court " to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.