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Journal ArticleDOI

Economic Due Process and the Supreme Court: An Exhumation and Reburial

01 Jan 1962-Supreme Court Review (The University of Chicago Press)-Vol. 1962, Iss: 1, pp 3
About: This article is published in Supreme Court Review.The article was published on 1962-01-01. It has received 33 citations till now. The article focuses on the topics: Supreme court.
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Journal ArticleDOI
01 Mar 1983
TL;DR: The work of John Hart Ely (1980) as mentioned in this paper is the closest to ours in the sense that it is based on the notion of the "substantive" meaning of the United States Constitution.
Abstract: the meaning of the Constitution. From Hamilton's early forays into the field of judicial review to the most recent explorations, most notably in the work of John Hart Ely (1980), the elaboration of important statements, or theories, of judicial review have been predicated on more or less clear renderings of constitutional purpose and design. This article will examine one such effort, that of Abraham Lincoln, whose famous argument on the limits of judicial supremacy provides the occasion for students of public law to piece together a coherent and illuminating constitutional theory. It is one that is responsive to the question raised by Lincoln in his third debate with Stephen Douglas: "What do you understand by supporting the Constitution of ... the United States?" (Collected Works, III, 1953: 130). As a part of this examination the article will discuss Professor Ely's thoughtful and widely acclaimed analysis, an analysis which, it is the argument here, represents a sharply divergent perspective on judicial review from that supported by Lincoln. The purpose, one should add, of invoking the contrary authority of someone of Lincoln's stature is not to attack Ely's work, or indeed to diminish his considerable scholarly achievement, but rather to suggest the distance we have traveled in a century of constitutional jurisprudence. Although Lincoln nowhere undertakes anything like the systematic analysis of judicial review found in Democracy and Distrust, his numerous reflections on a variety of legal and political issues enable one to formulate a Lincolnian legal philosophy, which in the succeeding pages will be characterized as the theory of constitutional aspiration. In this theory, the Supreme Court plays a prominent, though far from exclusive, role in the national striving to fulfill the substantive ideals of the Constitution and the Declaration of Independence. The view of the Constitution as a document embodying substantive ideals is not, of course, of only historical interest. Indeed, Ely's work is partly to be understood as a reaction to the popularity of this (for Ely, ill-founded) perception in the recent work of judges and constitutional scholars. In one important sense, however, this modern interpretation of the "substantive" constitution1 is not unlike Ely's "process" view, in that both accounts would find fault in an understanding according to which the substantive meaning of the document could be derived from princi-

8 citations

Journal ArticleDOI
TL;DR: Using an agency model, the authors showed that judicial review has a heretofore unacknowledged democracyenhancing effect by constraining the policy choices made by elected representatives, making it more likely that politicians behave in the voters' best interests.
Abstract: Although judicial review is used to police constitutional boundaries, the practice raises serious democratic concerns because unelected judges can overrule the decisions of political majorities. Using an agency model we show that judicial review has a heretofore unacknowledged democracyenhancing eect. By constraining the policy choices made by elected representatives, judicial review increases the importance of oce benefits as compared to policy benefits, making it more likely that politicians behave in the voters’ best interests. Politicians do so across policy issues, including those that courts cannot review, leading to a spillover eect. These eects

6 citations

Journal ArticleDOI
TL;DR: When President Roosevelt proclaimed the “Four Freedoms” in 1941, he accepted a new conception of human rights far removed from the natural rights of the seventeenth and eighteenth centuries as discussed by the authors.
Abstract: When President Roosevelt proclaimed the “Four Freedoms” in 1941, he accepted a new conception of human rights far removed from the natural rights of the seventeenth and eighteenth centuries. The conception of rights which inspired the British Bill of Rights (1689), the Declaration of Independence (1776) and the Declaration of the Rights of Man and Citizen (1789) is grounded in simple natural law notions. Man was believed to have a fixed and unalterable nature, to be endowed with reason, which gave him certain rights without which he ceased to be a human being. These natural rights, summed up in the Lockean formula of “life, liberty and property” (later broadened to include the pursuit of happiness), were largely concerned with protecting the individual person against governmental power. Each man was seen as entitled to a personal sphere of autonomy, more especially of religious conviction and property; the inner and the outer man in his basic self-realization and self-fulfillment. These rights depended in turn upon the still more crucial right to life-that is to say, to the self itself in terms of physical survival and protection against bodily harm. This right to life was recognized even by absolutists, like Thomas Hobbes. It was believed immutable, inalienable, inviolable. Locke exclaimed at one point that these rights no one had the power to part with, and hence no government could ever acquire the right to violate them.

5 citations

Journal ArticleDOI
TL;DR: In this article, a model of Supreme Court decision making is presented to show what results, in group policy, can be expected from various kinds of changes in group membership, including membership changes.
Abstract: It has long been recognized that Presidents seek to influence Supreme Court policy by the appointment of ideologically "correct" Justices. Implicit here is the assumption that the Court response (if any) will be in the direction of the new appointee. The specific task of this paper is to challenge that assumption by showing what results, in group policy, can be expected from various kinds of changes in group membership. Before turning to this demonstration, however, some background must be set out. Toward this end, a model of Supreme Court decision making will be constructed.

4 citations