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The Embattled Constitution

Norman Dorsen

Publication Year: 2012

"An indispensable and provocative guide through the thicket of today's most challenging constitutional controversies by some of the most eminent judges of their time. It offers an invaluable peek behind the curtain of judicial decision making."
 —David Cole, Professor of Law, Georgetown University
 
The Embattled Constitution presents the fourth collection of the James Madison lectures delivered at the NYU School of Law, offering thoughtful examinations of an array of topics on civil liberties by a distinguished group of federal judges, including Justice Stephen Breyer of the U.S. Supreme Court. The result is a fascinating look into the minds of the judges who interpret, apply, and give meaning to our “embattled Constitution.”
 
In these insightful and incisive essays, the authors bring to bear decades of experience to explore wide-ranging issues. The authors also discuss how and why the Constitution came to be embattled, shining a spotlight on the current polarization in both the Supreme Court and the American body politic and offering careful and informed analysis of how to bridge these divides.
 
Contributors include Marsha S. Berzon, Michael Boudin, Stephen Breyer, Guido Calabresi, Robert H. Henry, Robert Katzmann, Pierre N. Leval, M. Blane Michael, Davis S. Tatel, J. Harvie Wilkinson, III, and Diane P. Wood.
 
Norman Dorsen is Stokes Professor of Law and Co-Director of the Arthur Garfield Hays Civil Liberties Program at NYU School of Law. He has directed the James Madison lecture series since 1977.
 
Catharine DeJuliois an Associate in the law firm of Sidley Austin LLP. During law school, she served as Editor-in-Chief of the New York University Law Review.
 

Published by: NYU Press

Title Page, Copyright, Dedication

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pp. 2-7

Contents

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pp. vii-viii

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Acknowledgments

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pp. ix-x

My principal thanks are to Cate DeJulio, ’11, who worked closely with me from the beginning in editing this book and did so intelligently, efficiently, and with unfailing good humor. ...

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Introduction

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pp. 1-6

The publication of The Embattled Constitution, the fourth volume of the James Madison lectures, which were founded in 1959, marks a new phase of constitutional law and civil liberties.1 The lectures published here appear at a time when the Supreme Court is sharply polarized, ...

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1. Our Democratic Constitution

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pp. 7-36

The United States is a nation built on principles of human liberty—a liberty that embraces concepts of democracy. The French political philosopher Benjamin Constant understood the connection. He distinguished between liberty as practiced by the ancient Greeks and Romans and the “liberty” of the eighteenth- and nineteenth-century “moderns.”1 ...

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2. Federal and State Courts: Restoring a Workable Balance

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pp. 37-54

We take the role of the inferior federal courts in this country for granted. It seems to us perfectly natural to have independent and inferior federal courts below the Supreme Court, and a separate system of state courts. But in fact, our system of parallel state and federal courts is unusual in a federalism, to put it mildly. ...

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3. Judicial Methodology, Southern School Desegregation, and the Rule of Law

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pp. 55-106

Americans have fiercely debated the proper role of Article III courts in our constitutional system ever since Chief Justice John Marshall declared in Marbury v. Madison that it is “emphatically the province and duty of the judicial department to say what the law is.”1 ...

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4. Our Eighteenth-Century Constitution in the Twenty-First-Century World

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pp. 107-138

Fine wines and Stradivarius violins improve with age, taking on greater richness and depth as the years go by. For many, if not most, other things in today’s frenetic world, value is evanescent. To be old is all too often to be out of date and ready for disposal. ...

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5. Judging under the Constitution: Dicta about Dictum

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pp. 139-168

Fine wines and Stradivarius violins improve with age, taking on greater richness and depth as the years go by. For many, if not most, other things in today’s frenetic world, value is evanescent. To be old is all too often to be out of date and ready for disposal. ...

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6. Judge Henry Friendly and the Mirror of Constitutional Law

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pp. 169-192

Henry Friendly served as a judge on the U.S. Court of Appeals for the Second Circuit from 1959 until his death in 1986. During that period, he wrote almost one thousand opinions,1 several books,2 thirty or so fullscale articles,3 and many tributes and book reviews.4 ...

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7. Toward One America: A Vision in Law

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pp. 193-206

The present age will go down in American history as a partisan and polarizing one. Indeed, that may be its defining characteristic. America has had deeply divisive eras before—the Federalist-Republican period and the Civil War spring to mind—but those eras divided over deeply consequential principles. ...

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8. Securing Fragile Foundations: Affirmative Constitutional Adjudication in Federal Courts

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pp. 207-244

I was so very pleased to have been invited to deliver the fortieth Madison Lecture. This honor is an especially meaningful one for me, as one of my predecessors in the Madison Lecture series was Justice William Brennan, for whom I clerked on the Supreme Court. In fact, Justice Brennan is the only person to have stood at this lectern twice ...

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9. Reading the Fourth Amendment: Guidance from the Mischief That Gave It Birth

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pp. 245-272

It is a special privilege for me, as a graduate of the New York University School of Law, to have been invited to deliver the James Madison Lecture. A chief purpose of this lecture series is “to enhance the appreciation of civil liberty.”1 Upon recalling this purpose, I thought immediately that the Fourth Amendment ...

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10. Living Our Traditions

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pp. 273-296

Today I want to talk about originalism, but through a somewhat narrow lens. I want to focus on Justice John Marshall Harlan II. Justice Harlan had a particularly interesting, and I think principled, response to originalism (at least with respect to the Fourteenth Amendment’s Due Process Clause, ...

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11. Statutes

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pp. 297-356

I owe much to James Madison, that diminutive giant, one of the founding architects of our constitutional structure. In my pre-bench, academic days, much of my work focused on the challenges of governance, on the ways that our institutions operate, and on the obstacles to and steps toward the more effective functioning of government. ...

About the Contributors

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pp. 357-358

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About the Editors

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pp. 359-360

Norman Dorsen is Stokes Professor of Law and Codirector of the Arthur Garfield Hays Civil Liberties Program at New York University School of Law. He is also counselor to the president of New York University. He has directed the James Madison lecture series since 1977. ...

Index

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pp. 361-376


E-ISBN-13: 9780814762806
E-ISBN-10: 0814770126
Print-ISBN-13: 9780814770122
Print-ISBN-10: 0814770126

Page Count: 400
Publication Year: 2012