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

By John Arthur | Go to book overview

Introduction

One of the interesting aspects of American political and intellectual history is the bitter disagreement that often surrounds the U.S. Constitution.1 The disputes began early; an opponent of the Constitution's adoption, William Manning, wrote in 1798 that he had "little doubt that the Convention who made [the Constitution] intended to destroy our free governments by it, or else they would never have spent four Months in making such an inexplicit thing."2 Debate continued in the nineteenth century, as the country argued and eventually went to war over slavery.3 In 1854 abolitionist William Lloyd Garrison famously described the Constitution as a "Covenant with Death and an Agreement with Hell." Burning a copy of the Constitution, he proclaimed, "So perish all compromises with tyranny."4

At other times Americans have treated their constitution with respect and even reverence, often turning it into a secular, democratic icon. Former Supreme Court Justice William O. Douglas expressed that sentiment in 1972: "The Supreme Court is really the keeper of the conscience. And the conscience is the Constitution."5 Even Frederick Douglass, who as a former slave had as much reason to despise the Constitution as anybody could have, wrote of it admiringly. Where the Constitution is susceptible of two meanings, he said

the one making it accomplish an innocent purpose, and the other a wicked purpose, we must in all cases adopt that which makes it accomplish an innocent purpose. Again, the details of a law are to be interpreted in light of the declared objects sought by the law. ... I only ask you to look at the American Constitution in the light of [these principles], and you will see with me that no man is guaranteed a right of property in man, under the provisions of that instrument.6

Among the explanations for these conflicting attitudes, besides the Constitution's early approval of slavery, is the well-known and intractable philosophical dilemma of democratic rule versus individual rights -- ideals that have been central themes of American political culture since before there even was a U.S. Constitution. In the Declaration of Independence, Thomas Jefferson attacked Britain's rule over the colonies with a ringing endorsement of the "self-evident" truth that governments derive their just powers from the "consent of the governed." In

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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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