A Constitution for All Times
Publication Year: 2013
Published by: The MIT Press
Series: Boston Review Books
Title Page, Copyright, Dedication
Part I Originalism, Activism, and Constitutional Values
1. In the Beginning
Since 1789, constitutions worldwide have come and gone. According to University of Chicago Law professor Tom Ginsburg, the median lifespan of a national constitution is eight years—roughly the life expectancy of a Great Dane. Why has the U.S. Constitution endured?...
2. Founding Firearms
The idea that the meaning of a constitutional provision is frozen at the moment of its ratification—and that its meaning can be discerned and applied to contemporary controversies in an incontestable manner—lies at the heart of arguments for originalism, an interpretive method Justice Scalia has spent his career championing....
3. Why Interpretive Methods Matter
During the Supreme Court’s 2010 term, in the course of oral argument over the constitutionality under the First Amendment of a California law that restricted the sale of violent video games to minors, Justice Samuel Alito got a big laugh from the audience when he interjected, “What Justice Scalia wants to know is what James Madison thought about video games.”...
4. What Do We Mean By Judicial Activism?
A weak economic recovery. The airwaves filled with demagoguery about important constitutional issues. A president who chides the Supreme Court for striking down a major piece of federal reform legislation. And, in response to charges of a pro-corporate tilt on a Court with a narrow conservative majority, Justice Roberts defends the Court’s intervention with the claim that judges do nothing...
5. The Unhealthy Activism of the Roberts Court
The Patient Protection and Affordable Care Act—a.k.a. Obamacare—is one of the most momentous pieces of federal legislation of the last half-century. But ironically the opponents who launched the failed constitutional attack on the Act used its modesty as the basis for their challenge....
Part II The Supreme Court and the Democratic Process
6. The Long Shadow of Bush v. Gore
It is one of the unforgettable moments in recent Supreme Court history, and a decision that will endure in the nation’s memory: in Bush v. Gore (2000), the Court stepped in to decide the presidential election. The Court halted Florida’s recount and announced that the state’s method of reviewing ballots violated the equal protection clause of the Fourteenth Amendment....
7. The Wages of Watergate
It has now been more than 40 years since the Watergate break-in, which precipitated modern efforts to respond to the dangers of unfettered political spending. Yet our political system is now more awash than ever in secret money. Why? Much of the answer lies in the interaction between Supreme Court decisions and post-Watergate reforms....
8. Me, Inc.
When the Supreme Court heard Santa Clara County v. Southern Pacific Railroad Co. in 1886, few would have pegged the case as a turning point in constitutional law. The matter at hand seemed highly technical: could California increase the property tax owed by a railroad if the railroad built fences on its property?...
9. Votes Behind Bars
Nearly half a century ago, Isaiah Berlin delivered an extraordinarily influential lecture called “Two Concepts of Liberty.” The negative concept consists in freedom from—“warding off interference” from external forces. By contrast, the positive concept consists in freedom to—to be “a doer—deciding, not being decided for.” Democracy requires both forms, but current constitutional doctrine adopts an unduly negative approach....
Part III Reasoning Together About Our Rights
10. Gideon’s Muted Trumpet
Last spring marked the 50th anniversary of Gideon v. Wainwright, in which the Supreme Court considered the Sixth Amendment’s guarantee that “in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” The Court unanimously interpreted the Amendment as requiring that states provide attorneys...
11. The Cost of Death
Samuel Johnson famously remarked, “When a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.” But precisely because it so concentrates the public mind, capital punishment has distorted the criminal justice system. Over the past 40 years, while the Supreme...
12. What’s a Right Without a Remedy?
In the momentous 1803 case Marbury v. Madison, Chief Justice John Marshall observed that the “very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury” and warned that a government cannot be called a “government of laws, and not of men . . . . if the laws furnish no
13. When the Umpire Throws the Pitches
During his confirmation hearings, Chief Justice Roberts famously compared judges to umpires. The analogy was designed to convey an image of judicial modesty: judges, like umpires, play a “limited role,” impartially applying rules made by others rather than serving as partisans for one team...
14. Empty Benches
There’s a story told about Joe McCarthy —not the right-wing senator from Wisconsin, but the manager of the great New York Yankees teams of the 1930s and ’40s. McCarthy dreamed that he had died and gone to heaven, where Saint Peter told him to assemble an all-star team. McCarthy was excited:...
15. Sometimes an Amendment Is Just an Amendment
The Fourteenth Amendment’s equal protection and due process clauses are never far from the news. Last term’s federal marriage equality litigation, for example, lay at their intersection. Many transformational events of post-Reconstruction America, from the dismantling of Jim Crow and the...
16. It Takes Two
The Supreme Court’s recent decisions in United States v. Windsor and Hollingsworth v. Perry gave supporters of marriage equality and civil rights for gay Americans much to be thankful for. In Windsor the Court struck down the federal Defense of Marriage Act (DOMA), which denied federal
17. The Constitution Without the Court
The end of June is high season at the Supreme Court, with the term’s final decisions coming down in rapid succession. But then in July and August, the Court recesses. We rarely hear again from the justices until October....
Epilogue: A Moveable Court
For liberals and progressives, the end of
the 2012–2013 Supreme Court term was the best of
times and the worst of times.
Supporters of social equality for gay people experienced a spring of hope and a season of light. The Supreme Court struck down the federal...
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