Words That Bind: Judicial Review and the Grounds of Modern Constitutional Theory

By John Arthur | Go to book overview

Notes

Introduction
1.
For an excellent study of the historical and cultural roots of American constitutional thought and attitudes, see Michael Kammen, A Machine That Would Go of Itself ( New York: Alfred A. Knopf, 1986).
2
William Manning, quoted in Kammen, A Machine That Would Go of Itself ( 1986) at xxiii.
3.
For a discussion of the issue whether slavery was incompatible with the Constitution, see William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760-1848 ( Ithaca: Cornell University Press, 1977).
4.
Carl Bode, The American Lyceum: Town Meeting of the Mind ( New York: Oxford University Press, 1956).
5.
CBS Reports, " Mr. Justice Douglas," September 6, 1972.
6.
Frederick Douglass, "The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery?" ( 1860), in Philip Foner, ed., The Life and Writings of Frederick Douglass ( New York: International Publishers Co., 1950 at 467.
7.
Such controversies are at least a century old. James Bradley Thayer famously argued in 1893, for example, that federal courts should reject congressional enactments only if the law's unconstitutionality cannot reasonably be doubted. See James Bradley Thayer, "The Origin and Scope of the American Doctrine of Constitutional Law,"7 Harvard Law Review ( 1893).
8.
Indeed, given the picture of constitutional theory I will defend, it would be quite surprising if the most attractive views were not familiar to the legal and political tradition.

Chapter 1
1.
Judicial review of state law had been exercised prior to Marbury v. Madison. See, for example, Ware v. Hylton, 3 U.S. (3 Dall.) 199 ( 1796) along with the Judiciary Act of 1789 giving the Supreme Court appellate jurisdiction over federal issues decided initially in state courts. But federal judicial protection against state violation of individual rights such as religion, speech, and criminal due process did not become accepted political practice until this century and was based on the Fourteenth Amendment.

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Words That Bind: Judicial Review and the Grounds of Modern Constitutional Theory
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Preface ix
  • Introduction 1
  • 1 - Enforcing the Social Contract: Original Intent 7
  • 2 - Perfecting the Democratic Process 45
  • 3 - Critical Legal Studies and the Denial of Law 75
  • 4 - Promoting the General Welfare: Utilitarianism, Law, and Economics 107
  • 5 - Democratic Contractualism and the Search for Equality 145
  • Notes 191
  • About the Book and Author 227
  • Table of Cases 229
  • Index 231
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