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This landmark work of Constitutional and legal history is the leading account of the ways in which federal judges, attorneys, and other law officers defined a new era of civil and political rights in the South and implemented the revolutionary 13th, 14th, and 15th Amendments during Reconstruction. "Should be required reading . . . for all historians, jurists, lawyers, political scientists, and government officials who in one way or another are responsible for understanding and interpreting our civil rights past."--Harold M. Hyman, Journal of Southern History "Important, richly researched. . . . the fullest account now available."--American Journal of Legal History
This landmark work of Constitutional and legal history is the leading account of the ways in which federal judges, attorneys, and other law officers defined a new era of civil and political rights in the South and implemented the revolutionary 13th, 14th, and 15th Amendments during Reconstruction.
Chief Justice John Marshall argued that a constitution "requires that only its great outlines should be marked [and] its important objects designated." Ours is "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." In recent years, Marshall's great truths have been challenged by proponents of originalism and strict construction. Such legal thinkers as Supreme Court Justice Antonin Scalia argue that the Constitution must be construed and applied as it was when the Framers wrote it. In Keeping Faith with the Constitution, three legal authorities make the case for Marshall's vision. They describe their approach as "constitutional fidelity"--not to how the Framers would have applied the Constitution, but to the text and principles of the Constitution itself. The original understanding of the text is one source of interpretation, but not the only one; to preserve the meaning and authority of the document, to keep it vital, applications of the Constitution must be shaped by precedent, historical experience, practical consequence, and societal change. The authors range across the history of constitutional interpretation to show how this approach has been the source of our greatest advances, from Brown v. Board of Education to the New Deal, from the Miranda decision to the expansion of women's rights. They delve into the complexities of voting rights, the malapportionment of legislative districts, speech freedoms, civil liberties and the War on Terror, and the evolution of checks and balances. The Constitution's framers could never have imagined DNA, global warming, or even women's equality. Yet these and many more realities shape our lives and outlook. Our Constitution will remain vital into our changing future, the authors write, if judges remain true to this rich tradition of adaptation and fidelity.
With its detailed and wide-ranging explorations in history, philosophy, and law, this book is essential reading for anyone interested in how the Constitution ought to be interpreted and what it means to live under a constitutional government."--BOOK JACKET.
Party conviction has always been "recognized as an essential qualification for the supreme bench in addition to legal learning and public service." In substantiation of this general observation, the author, in his introduction, points out that "only ardent supporters of a strong federal system were elevated to the bench by Washington and Adams." Unanimity in the early opinions herein finds its explanation. The only apparent exception to the conclusion that party conviction was an essential qualification to a position on the supreme bench the author finds to be in the offer of the chief justiceship to Patrick Henry by President Washington in the fall of 1795-96, despite the fact that Henry had been the ablest and most influential opponent of constitutional ratification in Virginia. The volume reviews the partisan character of many leading cases, including such typical instances as Hepburn v. Griswold, a reversal by the supreme court for which political influence has been held responsible, and the "decisions in the insular cases and the decisions growing out of the Inter-State Commerce Act" which have "carried loose construction to its ultimate limit." Criticisms of the supreme court have been made from the time of the earlier cases on the power of the courts to declare congressional acts unconstitutional, through the Dred Scott case, the prize cases, the legal tender cases, the income tax decisions, to the criticism of the Democratic platform of 1904 in which the Republican party is held responsible for forcing "strained, unnatural constructions upon the statutes by virtue of its control of the judiciary." The respective chapters include intimate and thorough-going discussions of the judicial power over legislative enactments: theory of constitutional construction; nature of the federal Union; imperialism v. expansion; the theory of internal improvements; the theory of the United States bank; the theory of legal tender; the theory of a protective tariff; the theory of an income tax; the theory of direct legislation; and the theory of the recall of judicial decisions. Of these important and far-reaching problems of our national life, the constitutionality of internal improvements and the constitutionality of the recall of judicial decisions only have not been officially determined by the supreme court of the United States. The volume contains few new facts but it does contain an interesting array of facts, cogently put and interestingly related. "The courts have been able to settle the metes and bounds of practically every [party] issue considered, with the exception of that of slavery." The author extols the "supreme confidence" that the American people have imposed in their federal courts, and finds that "it is fortunate that this confidence exists for it insures the country against riots and civil strife, resulting from heated debate and party antagonism." The volume is valuable because it brings together the legal and constitutional phases of the most prominent planks in partisan platforms, and indicates through its every page the close relation between the federal judicial tribunals and the solution of political, social and economic problems. -Annals of the American Academy of Political and Social Science [1915]
This major history of judicial review, revised to include the Rehnquist court, shows how modern courts have used their power to create new "rights with fateful political consequences." Originally published by Basic Books.
2011 Winner of the Selection for Professional Reading List of the U.S. Marine Corps The judiciary in the United States has been subject in recent years to increasingly vocal, aggressive criticism by media members, activists, and public officials at the federal, state, and local level. This collection probes whether these attacks as well as proposals for reform represent threats to judicial independence or the normal, even healthy, operation of our political system. In addressing this central question, the volume integrates new scholarship, current events, and the perennial concerns of political science and law. The contributors—policy experts, established and emerging scholars, and attorneys—provide varied scholarly viewpoints and assess the issue of judicial independence from the diverging perspectives of Congress, the presidency, and public opinion. Through a diverse range of methodologies, the chapters explore the interactions and tensions among these three interests and the courts and discuss how these conflicts are expressed—and competing interests accommodated. In doing so, they ponder whether the U.S. courts are indeed experiencing anything new and whether anti-judicial rhetoric affords fresh insights. Case studies from Israel, the United Kingdom, and Australia provide a comparative view of judicial controversy in other democratic nations. A unique assessment of the rise of criticism aimed at the judiciary in the United States, The Politics of Judicial Independence is a well-organized and engagingly written text designed especially for students. Instructors of judicial process and judicial policymaking will find the book, along with the materials and resources on its accompanying website, readily adaptable for classroom use.
Party conviction has always been "recognized as an essential qualification for the supreme bench in addition to legal learning and public service." In substantiation of this general observation, the author, in his introduction, points out that "only ardent supporters of a strong federal system were elevated to the bench by Washington and Adams." Unanimity in the early opinions herein finds its explanation. The only apparent exception to the conclusion that party conviction was an essential qualification to a position on the supreme bench the author finds to be in the offer of the chief justiceship to Patrick Henry by President Washington in the fall of 1795-96, despite the fact that Henry had been the ablest and most influential opponent of constitutional ratification in Virginia. The volume reviews the partisan character of many leading cases, including such typical instances as Hepburn v. Griswold, a reversal by the supreme court for which political influence has been held responsible, and the "decisions in the insular cases and the decisions growing out of the Inter-State Commerce Act" which have "carried loose construction to its ultimate limit." Criticisms of the supreme court have been made from the time of the earlier cases on the power of the courts to declare congressional acts unconstitutional, through the Dred Scott case, the prize cases, the legal tender cases, the income tax decisions, to the criticism of the Democratic platform of 1904 in which the Republican party is held responsible for forcing "strained, unnatural constructions upon the statutes by virtue of its control of the judiciary."The respective chapters include intimate and thorough-going discussions of the judicial power over legislative enactments: theory of constitutional construction; nature of the federal Union; imperialism v. expansion; the theory of internal improvements; the theory of the United States bank; the theory of legal tender; the theory of a protective tariff; the theory of an income tax; the theory of direct legislation; and the theory of the recall of judicial decisions. Of these important and far-reaching problems of our national life, the constitutionality of internal improvements and the constitutionality of the recall of judicial decisions only have not been officially determined by the supreme court of the United States. The volume contains few new facts but it does contain an interesting array of facts, cogently put and interestingly related. "The courts have been able to settle the metes and bounds of practically every [party] issue considered, with the exception of that of slavery." The author extols the "supreme confidence" that the American people have imposed in their federal courts, and finds that "it is fortunate that this confidence exists for it insures the country against riots and civil strife, resulting from heated debate and party antagonism." The volume is valuable because it brings together the legal and constitutional phases of the most prominent planks in partisan platforms, and indicates through its every page the close relation between the federal judicial tribunals and the solution of political, social and economic problems. --Annals of the American Academy of Political and Social Science [1915]