Showing papers by "Keith E. Whittington published in 2012"
Posted Content•
TL;DR: The distinction between constitutional interpretation and constitutional construction has been taken up in various places in constitutional and legal scholarship as discussed by the authors, and the concept of constitutional construction and its potential uses have been discussed.
Abstract: The distinction between constitutional interpretation and constitutional construction has been taken up in various places in constitutional and legal scholarship. In this article, I reintroduce the concept of constitutional construction and its potential uses, consider the extent to which courts might engage in constitutional construction, and examine whether the process of constitutional construction is avoidable or excludable with a sufficiently refined theory of constitutional interpretation.
4 citations
Posted Content•
TL;DR: This article argued that originalism is a principled theory of constitutional interpretation and not merely a rationalization for conservatism, and argued that the association of conservative politics with originalism was not accidental, however, and conservatives are often likely to find originalism to be a more normatively attractive approach to constitutional interpretation than liberals generally will.
Abstract: Originalism as an approach to constitutional theory and constitutional interpretation is often associated with conservative politics Is originalism a principled theory of constitutional interpretation, or is it merely a cover for reaching politically conservative results in court? Is originalism theoretically interesting independent of its connection to conservative politics? This essay argues that originalism is a principled theory of constitutional interpretation and not merely a rationalization for conservatism The association of conservative politics with originalism is not accidental, however, and conservatives are often likely to find originalism to be a more normatively attractive approach to constitutional interpretation than liberals generally will Focusing on originalist theory rather than judicial decision-making, this essay considers the ways in which originalism intersects with conservatism and the ways in which originalism might diverge from conservatism
4 citations
Posted Content•
TL;DR: The authors examines judicial, legislative and executive citations and legal commentary to show that Marbury did not enter the constitutional canon as the fountainhead of judicial review until the turn of the twentieth century.
Abstract: How important was Marbury v. Madison in American constitutional history? This article examines judicial, legislative and executive citations and legal commentary to show that Marbury did not enter the constitutional canon as the fountainhead of judicial review until the turn of the twentieth century. In doing so, it reveals the process by which historical memories are constructed and adds to our understanding about the diverse sources of judicial review in the early republic and the rhetoric of judicial authority.
3 citations
Posted Content•
TL;DR: The Critical Concepts in Political Science (CCPS) series as discussed by the authors provides a comprehensive introduction to the field of law and politics and will stand as an essential research resource for scholars and students alike.
Abstract: The scholarly study of law and politics is a growing and diverse field. The range of scholarship in the area reflects the wide scope of issues and questions that are relevant to the field of law and politics and that invite new and further study. The diversity of scholarly interest in law and politics also reflects the interdisciplinary conversation that the field invites. Law and Politics covers this ground as a new title in the Routledge series, Critical Concepts in Political Science. Along with a new introduction by the editor, the four-volume collection brings together the best of canonical and cutting-edge works in the field. It provides a comprehensive introduction to the field of law and politics and will stand as an essential research resource for scholars and students alike. The first volume in the collection focuses on jurisprudence and constitutionalism and assembles key works examining such basic question as what is law and what purposes do constitutions serve. The second volume turns its attention to how courts operate and how judges make their decisions, examining the judicial process from trial courts to appellate courts. The third volume focuses on the relationship between law and society and takes up the intersection between the legal process and social actors, considering such issues as how ordinary people think about the law and how legal compliance works. The final volume considers law, courts and politics in an international and comparative perspective, bringing together research on such topics as the foundations of judicial independence and the relationship between law and economic development. This introduction overviews the development and current contours of the field of law and politics.
2 citations
Journal Article•
TL;DR: The authors examines judicial, legislative and executive citations and legal commentary to show that Marbury did not enter the constitutional canon as the fountainhead of judicial review until the turn of the twentieth century.
Abstract: How important was Marbury v. Madison in American constitutional history? This article examines judicial, legislative and executive citations and legal commentary to show that Marbury did not enter the constitutional canon as the fountainhead of judicial review until the turn of the twentieth century. In doing so, it reveals the process by which historical memories are constructed and adds to our understanding about the diverse sources of judicial review in the early republic and the rhetoric of judicial authority.
2 citations
Book•
14 Dec 2012
TL;DR: The Montgomery bus boycott was started by Rosa Parks as discussed by the authors after she violated a city ordinance by refusing to move to the back of a bus as ordered by the driver, but neither the driver nor the police officers knew that Parks was a member of the local NAACP and had been looking for a vehicle to protest the way African-Americans were treated on city buses.
Abstract: On December 1, 1955, Rosa Parks was arrested by Montgomery, Alabama, police officers after she violated a city ordinance by refusing to move to the back of a bus as ordered by the driver. What neither the driver nor the police officers knew was that Parks was a member of the local NAACP and had been looking for a vehicle to protest the way African-Americans were treated on city buses. That night, civil rights organizations began distributing leaflets throughout the African-American community declaring “Don’t ride the buses to work, to town, to school, or anywhere on Monday.” The Montgomery bus boycott had begun. Initially, the protestors demanded only polite treatment and the right to sit in the front of the bus when there were no white riders. Two months of local intransigence and violence convinced the Montgomery Improvement Association (MIA), led by a young pastor named Martin Luther King, to make greater demands. By February 1956, the MIA was insisting that Montgomery buses desegregate and sponsoring a lawsuit aimed at declaring segregation on city buses unconstitutional. The federal district court in Browder v. Gayle by a divided vote and the Supreme Court of the United States by a unanimous vote declared unconstitutional segregation on city buses. While the Supreme Court in Brown v. Board of Education (1954) did not explicitly overrule Plessy v. Ferguson (1896), Judge Rives’s majority opinion for the district court assumed that Plessy for all practical purposes had been overruled. Was he correct in making that assumption? Should lower federal courts have waited for an explicit declaration that Plessy had been overruled? Could lower court justices have at some point inferred that Plessy had been overruled from the Supreme Court’s practice of issuing one sentence opinions in segregation cases? Gayle v. Browder is an example of a one sentence Supreme Court opinion declaring segregation unconstitutional in light of Brown. The Supreme Court issued similar one sentence per curiam opinions when reviewing lower federal court rulings on the constitutionality of laws mandating segregation in state dining facilities and restrooms, athletic contests sanctioned by the state, state parks, state golf courses, state beaches, state entertainment facilities, state buildings, jails and courthouses. What do you make of this practice? Were the justices implicitly asserting that the unconstitutionality of segregation was obvious? Did the per curiam opinions mask disagreement over the reasons why segregation was unconstitutional? Was this part of the judicial strategy not to unduly antagonize the South?
1 citations
Posted Content•
TL;DR: Cutting a path between the liberals and conservatives on the US Supreme Court, Chief Justice John Roberts made small adjustments in established constitutional law to uphold key features of the act and leave the landscape of constitutional law much as he had found it.
Abstract: The Affordable Care Act (ACA) invoked political firestorm and raised intriguing new questions of constitutional law. Cutting a path between the liberals and conservatives on the U.S. Supreme Court, Chief Justice John Roberts made small adjustments in established constitutional law to uphold key features of the act. In doing so, he not only upheld the statute, but also left the landscape of constitutional law much as he had found it. He did, however, suggest that the federal courts should take a more active role in monitoring how Congress uses its constitutional powers and should not shy away from making specific determinations of whether Congress had abused its power in particular cases.