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Vol 23 No 5 May/June 2018

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The Constitution in Conflict

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Robert A. BurtSouthmayd Professor of Law, Yale University, USA

ISBN13: 9780674165366
ISBN: 0674165365
Published: June 1992
Publisher: Harvard University Press
Format: Hardback
Price: Out of print

""If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made... the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal"", Abraham Lincoln.;Lincoln was not alone in believing that the Constitution could be interpreted by any of the three branches of the government. Today, however, the Supreme Court's role as the ultimate arbiter of constitutional matters is widely accepted. But as Robert Burt aims to show in his book, this was not always the case, nor should it be.;In a reconstruction of constitutional history, Burt traces the controversy over judicial supremacy back to the founding fathers, with Madison and Hamilton as the principal antagonists. The conflicting views these founders espoused - equal interpretive powers among the federal branches on one hand and judicial supremacy on the other - remain plausible readings of ""original intent"" and so continue to present us with a choice.;Drawing extensively on Lincoln's conception of political equality, Burt argues that judicial supremacy and majority rule are both inconsistent with the egalitarian democratic ideal. The proper tasks of the judiciary, he contends - as epitomized in Brown vs Board of Education - is to actively protect minorities against ""enslaving"" legislative defeats while, at the same time, to refrain from awarding conclusive ""victory"" to these minorities against their adversaries. From this premise, Burt goes on to examine key decisions such as Roe vs Wade, US vs Nixon, and the death penalty cases, all of which demonstrate how the Court has fallen away from egalitarian jurisprudence and returned to an essentially authoritarian conception of its role. With an eye to the urgent issues at stake in these cases, Burt identifies the alternative results that an egalitarian conception of judicial authority would dictate.;The first fully articulated presentation of the Constitution as a communally interpreted document in which the Supreme Court plays an important, but not predominant, role, ""The Constitution in Conflict"" has dramatic implications for both the theory and the practice of constitutional law.

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