Foreshadows of the Law: Supreme Court Dissents and Constitutional Development

By Donald E. Lively | Go to book overview

PREFACE

The U.S. Constitution, as originally framed and ratified, plotted a structure of governance, delineated political powers and itemized certain individual rights and liberties. The chartering of the republic resolved the formal challenge of establishing a union but, with respect to the nation's evolution, was more a starting than an ending point. The framing process itself left open the possibility of further constitutional development. The potential for the document's own growth and change was anticipated specifically by Article V, which sets forth the conditions and procedures for amendment. Multiple amendments over two hundred years, including the Bill of Rights which was appended to secure ratification, have helped to redefine the Constitution. Still, the relatively cumbersome process of such change, requiring supermajorities of the Congress or states to propose and of the states to ratify an amendment, is not the only or even the most profound source of constitutional development.

For nearly two centuries, the U.S. Supreme Court has been the primary interpreter of the Constitution's meaning. Although not specifically provided by the document itself, the power of the judiciary to interpret the Constitution has existed since Chief Justice Marshall asserted it in Marbury v. Madison. As the ultimate authority on the Constitution's meaning, the Supreme Court exercises the power to define, amplify and steer the document's operative terms and conditions. Constitutional law, as a consequence, comprises not only broad and imprecise terms of the charter itself, but also a massive body of case law expounding principle, doctrine and sometimes contradiction.

For practical purposes, the Constitution is animated by the resolution of cases that work their way through the judicial process. The Supreme

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Foreshadows of the Law: Supreme Court Dissents and Constitutional Development
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Preface ix
  • INTRODUCTION: JUDICIAL REVIEW AND CONSTITUTIONAL DEVELOPMENT xiii
  • Bibliography xxvi
  • Chapter 1 a Constitutional Right in Slavery 1
  • Bibliography 22
  • Chapter 2 Images of a New Union 25
  • Bibliography 41
  • Chapter 3 Constitutional Redefinition and National Reconstruction 43
  • Bibliography 60
  • Chapter 4 the Rise, Demise and Resurrection of Substantive Due Process 63
  • Bibliography 85
  • Chapter 5 Color and the Constitution 87
  • Bibliography 111
  • Chapter 6 Freedom of Speech: the "Indispensable" Liberty 113
  • Bibliography 134
  • Chapter 7 the Right to Be Let Alone 137
  • Bibliography 158
  • AFTERWORD 161
  • Index 163
  • About the Author 169
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