Protecting Constitutional Freedoms: A Role for Federal Courts

By Daan Braveman; Paul L. Murphy | Go to book overview

lower federal courts. The Court thus usurps legislative power when it develops doctrines that operate as a limit on the business of the federal judiciary. In addition, regardless of the quality of state courts, protection of constitutional rights is a national issue that transcends local interests and local protection, and the business of the federal courts should include that task. Finally, closing the federal courts to litigants asserting constitutional rights, but leaving the doors open to other classes of litigants, reinforces perceptions of unfairness and discriminatory treatment.

The issues examined in this book have been the subject of numerous articles in scholarly journals. Unfortunately, the general public has not been included in the debate about the role of the federal judiciary in guarding constitutional rights. It has been observed that although the founders of our country "differed over many important matters, they shared a belief that the constitutional system created between 1787 and 1791 (when the Bill of Rights received approval) should be fully comprehensible to the American people."20 This book is written with that spirit in mind. The patients in Pennhurst Hospital fell victim to the federal judiciary's change in character. As revealed in the following pages, there have been other victims as well. The general public, I believe, is entitled to hear their stories and participate in the debate about the proper character of federal courts in our constitutional system.


Notes
1.
For a detailed discussion of the conditions, see Judge Raymond Broderick's opinion in Halderman v. Permhurst State School and Hospital, 446 F. Supp. 1295 (E. D. Pa. 1977).
2.
Id. at 1326.
3.
612 F.2d 84 (3d Cir. 1979) (en banc).
4.
On remand, the district court established detailed procedures for individual determinations.
5.
451 U.S.1, 32-33 ( 1981).
6.
673 F.2d 647 (3d Cir. 1982) (en banc).
7.
465 U.S.89 ( 1984).
8.
610 F. Supp. 1221, 1222 (E. D. Pa. 1985). For further discussion of Permhurst, see Althouse, "How to Build a Separate Sphere: Federal Courts and State Power", 100 HARV. L. REV. 1485 ( 1987); Chernerinsky, StateSovereig" and Federal Court Power: The Eleventh Amendment After Pennhurst v. Halderman

-9-

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Protecting Constitutional Freedoms: A Role for Federal Courts
Table of contents

Table of contents

  • Recent Titles in Contributions in Legal Studies ii
  • Title Page iii
  • Copyright Acknowledgments v
  • Contents ix
  • Preface xi
  • Chapter 1- Introduction 1
  • Notes 9
  • Chapter 2- Openmig the Federal Courthouse Doors 11
  • Notes 49
  • Chapter 3- Crossing the Threshold 57
  • Notes 75
  • Chapter 4- Our Federalism And Injunctions 79
  • Notes 98
  • Chapter 5- Damages 101
  • Notes 131
  • Chapter 6- Rules of Preclusion 135
  • Notes 157
  • Chapter 7- Institutional Character 165
  • Notes 188
  • Bibliography 193
  • Index 201
  • About the Author 207
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