Foreshadows of the Law: Supreme Court Dissents and Constitutional Development

Foreshadows of the Law: Supreme Court Dissents and Constitutional Development

Foreshadows of the Law: Supreme Court Dissents and Constitutional Development

Foreshadows of the Law: Supreme Court Dissents and Constitutional Development

Synopsis

Although the Supreme Court is the ultimate authority for determining what the Constitution means, it has not always effected final decisions in its majority rulings. The law has, rather, changed and developed over time in many important areas. Lively focuses attention on several dissenting opinions which were crucial to the eventual definition of basic rights and liberties. He examines not only the opinions but the context in which they arose and the personalities behind them, tracing the influence of the dissents on the development of modern law. The work affords keen insights into how basic law--far from being a given, static code--has evolved.

Excerpt

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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