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

By John Arthur | Go to book overview

About the Book and Author

The words of the U.S. Constitution limit the possibilities of political action: they bind us in certain ways. How they bind us, however, depends upon how these words are interpreted and upon the distinctively American practice of judicial review.

In Words That Bind, John Arthur examines conflicting theories of constitutional interpretation and judicial review, arguing that each of the dominant legal approaches -- from original intent to law and economics, from legal pragmatism to Critical Legal Studies -- rests on a distinct philosophical conception of democracy.

Turning to recent work in political philosophy, Arthur explores the important but oft-ignored implications of both utilitarianism and social contract theory for constitutional interpretation and judicial review. He addresses such important and contested issues as the justification of rights, the rule of law, popular consent, equality, and feminist constitutional theory. The book makes an especially significant contribution through the fruitful interaction of two traditions: constitutional jurisprudence and contemporary political theory.

Words That Bind presents a careful and nuanced treatment of a set of ideas and institutional forms absolutely central to U.S. democracy. Arguing that neither legal theory nor political philosophy can proceed independently of the other, Arthur illuminates both topics as no other recent author has.

John Arthur is professor of philosophy and director of the Program in Philosophy, Politics, and Law at Binghamton University. He is the author of The Unfinished Constitution ( 1989) as well as numerous articles in legal and political theory. He has also edited several books including, most recently, Campus Wars: Multiculturalism and the Politics of Difference (Westview, 1995, coedited with Amy Shapiro). In 1992 he was awarded the SUNY Chancellor's and Binghamton University awards for excellence in teaching.

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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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