The Democratic Constitution

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Oxford University Press, Aug 26, 2004 - Political Science - 320 pages
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Constitutional law is clearly shaped by judicial actors. But who else contributes? Scholars in the past have recognized that the legislative branch plays a significant role in determining structural issues, such as separation of powers and federalism, but stopped there--claiming that only courts had the independence and expertise to safeguard individual and minority rights. In this readable and engaging narrative, the authors identify the nuts and bolts of the national dialogue and relate succinct examples of how elected officials and the general public often dominate the Supreme Court in defining the Constitution's meaning. Making use of case studies on race, privacy, federalism, war powers, speech, and religion, Devins and Fisher demonstrate how elected officials uphold individual rights in such areas as religious liberty and free speech as well as, and often better than, the courts. This fascinating debunking of judicial supremacy argues that nonjudicial contributions to constitutional interpretation make the Constitution more stable, more consistent with constitutional principles, and more protective of individual and minority rights.
 

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Contents

Introduction
3
1 Judicial Supremacy as Orthodoxy
9
2 Who Participates?
29
3 Federalism
53
4 Separation of Powers
77
5 The War Power
103
6 Privacy
127
7 Race
149
8 Speech
173
9 Religion
195
10 The Ongoing Dialogue
217
Notes
241
Case Index
289
Subject Index
297
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About the author (2004)

Neal Devins is Ernst W. Goodrich Professor of Law and Government at the College of William and Mary. He is also editor of the Constitutional Conflicts Book Series at Duke University Press. Louis Fisher is senior specialist in separation of powers at the Congressional Research Service. He testifies before congressional committees on a variety of constitutional issues, including war powers, executive privilege, item vetoes, legislative vetoes, and covert spending.

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