Politics, Democracy, and the Supreme Court: Essays on the Frontier of Constitutional Theory

Politics, Democracy, and the Supreme Court: Essays on the Frontier of Constitutional Theory

Politics, Democracy, and the Supreme Court: Essays on the Frontier of Constitutional Theory

Politics, Democracy, and the Supreme Court: Essays on the Frontier of Constitutional Theory

Synopsis

Miller proposes that we focus our energies on the question of how the Constitution is to function in an era of rapid and fundamental social change. He introduces this provocative collection of essays with the observation that American constitutional theory has arrived at a dead-end, largely because it has been perceived as constitutional law rather than a form of political theory. He puts this view into sharp perspective by looking at what are in effect, three constitutions--the political, the economic, and the emergent corporate instrument. He analyzes important issues that confront the Supreme Court, policymakers, and theorists, such as the expansion of government control, the Court as a political mechanism, the power of corporations, politics and the First Amendment, the challenge of nuclear weapons, and questions relating to social justice, including equal protection and the right to employment.

Excerpt

Except for Chapter 1, the articles reproduced here were published in ten different legal periodicals over a six-year period (1978-1984). They have been brought together, and introduced with a newly written 11th essay, to make them readily available in one handy volume. the central theme is that American constitutional theory, which for most commentators is concerned with judicial review, has come to a dead end. Theorists are more interested in the disputes of yesteryear--principally, the legitimacy of the role of the Supreme Court in government--than with the many new problems now confronting the American people. This mind-set is probably attributable to the fact that American constitutionalism is perceived as constitutional law, and thus the province of lawyers and judges, rather than the political theory that it really is.

Two centuries ago, the fifty-five men who drafted the Constitution were by no means clear about judicial review. One of the great silences of that document, therefore, is the power of the Supreme Court to review the validity of other acts of government. the silence began to be filled with the decision in Marbury v. Madison (1803). Since then, a running debate has been carried on over the propriety of an appointed group of judges with life tenure making ultimate public policy decisions--of being, that is, the voice of the Constitution.

I have long thought that the debate is unsatisfactory. Every student of the Constitution is fully aware of the arguments for and against judicial review, and many manage to publish them in a plethora of books and articles. Few minds are changed in the debate, which increasingly resembles medieval scholastics endlessly arguing over what Aristotle meant, all the while not noticing that their world was crumbling and disappearing outside.

So it is today. Mankind has, I believe, come to a major turning point in its relatively short (known) planetary existence. a new social order is emerging, bringing with it problems both unique and complex. Most constitutional scholars apparently are not aware of the paradigm shift that is occurring; or if they are, they choose to ignore it. They persist in arguing . . .

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