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The Unpredictable Constitution

Norman Dorsen

Publication Year: 2002

The Unpredictable Constitution brings together a distinguished group of U.S. Supreme Court Justices and U.S. Court of Appeals Judges, who are some of our most prominent legal scholars, to discuss an array of topics on civil liberties.

In thoughtful and incisive essays, the authors draw on decades of experience to examine such wide-ranging issues as how legal error should be handled, the death penalty, reasonable doubt, racism in American and South African courts, women and the constitution, and government benefits.

Contributors: Richard S. Arnold, Martha Craig Daughtry, Harry T. Edwards, Ruth Bader Ginsburg, Betty B. Fletcher, A. Leon Higginbotham, Jr., Lord Irvine of Lairg, Jon O. Newman, Sandra Day O'Connor, Richard A. Posner, Stephen Reinhardt, and Patricia M. Wald.

Published by: NYU Press



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pp. v-vi

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pp. vii

For assistance in arranging the James Madison lectures that became the chapters in this book, and for help in its preparation, I am grateful to Bobbie Glover, the impressario of the events, to Karen Johnson for her imaginative and careful editing, to Andras Pap for his aid in formatting...

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pp. 1-5

It would have been hard to foretell, or even to imagine, a more startling constitutional event than the Supreme Court decisions in Bush v. Gore, which were rendered as this book was being prepared for press. The rulings determined the 2000 presidential election, in a scenario that was almost unthinkable...

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1. Government Benefits: A New Look at an Old Gift Horse

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pp. 7-25

Tonight I am going to talk about an old problem in constitutional law: the volatile relationship between constitutional rights and government benefits. In my view, the jury-rigged doctrine of rights and benefits we are now living with deserves serious reconsideration. One aspect of that doctrine...

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2. Racism in American and South African Courts: Similarities and Differences

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pp. 26-56

More than a century ago, William Goodell observed that: “No people . . . were ever yet found who were better than their laws, though many have been known to be worse.”1 Similarly, I submit that in the United States and in South Africa, the justice that blacks, the powerless, and the near...

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3. Portia’s Progress

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pp. 57-70

I am very happy to be celebrating with you the One Hundredth Anniversary of Women Graduates from New York University School of Law. New York University showed great foresight by admitting women law students before the turn of the century. It was one of the first major law schools to do so...

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4. Speaking in a Judicial Voice

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pp. 71-100

The Madison Lecture series has exposed and developed two main themes: human rights and the administration of justice, particularly in our nation’s federal courts.1 My remarks touch on both themes; I will speak first about collegiality in style, and next aboutmoderation in the substance of appellate...

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5. Beyond “Reasonable Doubt”

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pp. 101-127

The James Madison Lectures were inaugurated “to enhance the appreciation of civil liberty and strengthen the national purpose.”1 A lecture named for the principal architect of the Bill of Rights could aspire to no lesser goal. I hope I do not stray outside the lofty objective of this distinguished series...

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6. The Death Penalty in America: Can Justice Be Done?

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pp. 128-146

James Madison might be surprised to hear the topic I have chosen for the lecture that bears his name.Madison neither championed nor deplored the death penalty.He apparently gave it little thought, for there is almost no reference to it in his voluminous writings. It is not discussed in...

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7. To Err Is Human, but Not Always Harmless: When Should Legal Error Be Tolerated?

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pp. 147-189

Assume an appellate judge must decide the following case: Joe Didit, who is six feet five inches tall, about two hundred and seventy pounds, Caucasian, and bald-headed, was recently tried for the murder of a conveniencestore proprietor. The indictment charged that, sometime near midnight on the...

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8. How James Madison Interpreted the Constitution

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pp. 190-216

The topic I have chosen is “How James Madison Interpreted the Constitution.” As I sat down to write, I realized that this title is itself ambiguous. It could refer to the various substantive positions Madison took on constitutional questions throughout his life—whether the Bank of the United States...

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9. Against Constitutional Theory

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pp. 217-238

Constitutional theory, as I shall use the term, is the effort to develop a generally accepted theory to guide the interpretation of the Constitution of the United States. It is distinct on the one hand from inquiries of a social scientific character into the nature, provenance, and consequences of...

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10. The Anatomy of an Execution: Fairness versus “Process”

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pp. 239-282

The year I graduated from law school, the Warren Court decided Brown v. Board of Education.2 Brown, perhaps the most important Supreme Court decision in history, introduced a new judicial era, an era in which the courts became the protectors of the rights of the poor, the disenfranchised, and the...

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11. Women and the Constitution:Where We Are at the End of the Century

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pp. 283-308

[In 1999] the ABA Journal published a cover story on the renewed efforts to amend the U.S.Constitution to prohibit discrimination on the basis of gender. 3 As it turns out, the Equal Rights Amendment (ERA) which, if ratified, would have become the twenty-seventh amendment to the Federal...

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12. Sovereignty in Comparative Perspective:Constitutionalism in Britain and America

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pp. 309-333

“The American Constitutions,” said Thomas Paine, “were to liberty, what a grammar is to language: They define its parts of speech, and practically construct them into syntax.”1 The central role which was played by James Madison, whose memory this lecture commemorates, in the construction of the...


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pp. 335-336


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pp. 337-347

E-ISBN-13: 9780814785461
E-ISBN-10: 0814785468
Print-ISBN-13: 9780814719480
Print-ISBN-10: 0814719481

Page Count: 356
Publication Year: 2002