The Constitution as Political Structure

The Constitution as Political Structure

The Constitution as Political Structure

The Constitution as Political Structure

Synopsis

Over the last forty years modern constitutional scholarship has concentrated on an analysis of rights, while principles of constitutional law concerning the structure of government have been largely downplayed. The irony of this interpretive emphasis is that the body of the Constitution contains relatively little dealing directly with rights. Rather, it is primarily a blueprint for the establishment of a complex form of federal-democratic structure. This work emphasizes the central role served by the structural portions of the Constitution. Redish argues that these structural values were designed to provide the framework in which our rights-based system may flourish, and that judicial abandonment of these structural values threatens the very foundations of American political theory.

Excerpt

This book both synthesizes and expands my work on the constitutional implications of political structure which began in the mid-1980s. It was at that point that I began to realize the vital symbiotic relationship that exists between matters of political structure and issues of individual liberty and judicial review. The book is designed to provide a thorough exploration of the intersection of these three fundamental elements of American political and constitutional theory. In essence, the book stands as a response to those scholars and jurists who have suggested that judicial enforcement of the Constitution's provisions concerning governmental structure should be either reduced or abandoned. It argues that an attempt to draw a dichotomy, for purposes of judicial review, between issues of liberty and governmental organization dangerously undermines the complex intersecting network of protections the Constitution gave us against the onset of tyranny. It further contends that in any event it is improper, from the perspective of American political theory, for the judicial branch effectively to repeal constitutional provisions that its members find to be inadvisable or unwise. This is not a task for which our judiciary was designed.

The book includes substantially revised and reorganized versions of several previously published articles, a number of which were coauthored with former students. These individuals deserve substantial credit for their significant contributions to the individual articles that bear their names. In particular, the book has drawn heavily on the following articles:

Supreme Court Review of State Court 'Federal' Decisions: A Study in Interactive Federalism, by Martin H. Redish, 19 Georgia Law Review 861 (1985); Constitutional Federalism and Judicial Review: The Role of Textual Analysis, by Martin H. Redish and Karen L. Drizin (nowKaren Levine), 62 N.Y.U. Law Review 1 (1987); The Dormant Commerce Clause and the Constitutional Balance of Federalism, by Martin H. Redish and Shane Nugent , 1987 Duke Law Journal 569; and 'If Angels Were to Govern': The Need for Pragmatic Formalism in Separation of Powers Theory, by Martin H. Redish and Elizabeth J. Cisar, 41 Duke Lawjournal 449 (1991). Chapter 5, however, is completely new, and, as already noted, the other chapters . . .

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