The Living ConstitutionOxford University Press, 19 mai 2010 - 176 pages Supreme Court Justice Antonin Scalia once remarked that the theory of an evolving, "living" Constitution effectively "rendered the Constitution useless." He wanted a "dead Constitution," he joked, arguing it must be interpreted as the framers originally understood it. In The Living Constitution, leading constitutional scholar David Strauss forcefully argues against the claims of Scalia, Clarence Thomas, Robert Bork, and other "originalists," explaining in clear, jargon-free English how the Constitution can sensibly evolve, without falling into the anything-goes flexibility caricatured by opponents. The living Constitution is not an out-of-touch liberal theory, Strauss further shows, but a mainstream tradition of American jurisprudence--a common-law approach to the Constitution, rooted in the written document but also based on precedent. Each generation has contributed precedents that guide and confine judicial rulings, yet allow us to meet the demands of today, not force us to follow the commands of the long-dead Founders. Strauss explores how judicial decisions adapted the Constitution's text (and contradicted original intent) to produce some of our most profound accomplishments: the end of racial segregation, the expansion of women's rights, and the freedom of speech. By contrast, originalism suffers from fatal flaws: the impossibility of truly divining original intent, the difficulty of adapting eighteenth-century understandings to the modern world, and the pointlessness of chaining ourselves to decisions made centuries ago. David Strauss is one of our leading authorities on Constitutional law--one with practical knowledge as well, having served as Assistant Solicitor General of the United States and argued eighteen cases before the United States Supreme Court. Now he offers a profound new understanding of how the Constitution can remain vital to life in the twenty-first century. |
Table des matières
Do We Want a Living Constitution? | 1 |
Originalism and Its Sins | 7 |
The Common Law | 33 |
Freedom of Speech and the Living Constitution | 51 |
Brown v Board of Education and Innovation in the Living Constitution with a Note on Roe v Wade | 77 |
The Role of the Written Constitution Common Ground and Jeffersons Problem | 99 |
Constitutional Amendments and the Living Constitution | 115 |
141 | |
Autres éditions - Tout afficher
Expressions et termes fréquents
African Americans Amendment was adopted American constitutional law answer argument Bill of Rights blacks Brown Cardozo’s Chaplinsky Civil Clause clear-and-present-danger test common law approach Congress Consti constitutional amendment controversial Court held critics decided decision direct election discrimination dissent Due Process earlier Eighth Amendment Equal Protection Equal Protection Clause evolution evolutionary example federal government Fifteenth Amendment forbid formal amendment Fourteenth Amendment framers freedom of expression freedom of speech Holmes’s idea important intentionally left blank issues Jefferson’s judges Justice kind Law School legislature living Constitution living constitutionalism MacPherson meaning ment moderate originalism opinion original understandings originalists Pentagon Papers political Pollock precedents president principles privity problem punishment question racial segregation rule Senate separate but equal Seventeenth Amendment Sixth Amendment society state’s Sullivan Supreme Court system of freedom things tion tional today’s traditions tution U.S. Constitution unconstitutional understood upheld views vote words written Constitution