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Vol 23 No 5 May/June 2018

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In Defence of the Text

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Leslie Friedman GoldsteinUniversity of Delaware, USA

ISBN13: 9780847677047
ISBN: 0847677044
Published: May 1994
Publisher: Rowman & Littlefield
Format: Paperback
Price: Out of print

Since the defeat of the Bork nomination to the US Supreme Court, ""constitutional philosophy"" has become a prominent issue in national politics. ""In Defence of the Text"" provides a comprehensive guide to the various theories of constitutional interpretation that are contending for the adherence of contemporary jurists. Leslie Friedman Goldstein introduces and critiques the philosophies of such leading constitutional theorists as Raoul Berger, Mark Tushnet, Ronald Dworkin, Lief Carter and Sanford Levinson. In response, she advocates a moderate version of the ""textualist tradition"" that dates from the first Chief Justice, John Marshall, an approach that Goldstein argues is represented most recently by Justice Hugo Black. Goldstein believes that in the realm of constitutional law the best precedents and the wisest juristic norms are those that take the text seriously as a guide to judicial discretion, while allowing judges to adapt the constitutional principle to changes that arise in society.

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Introduction - why constitutional theory?; John Marshall and 20th century jurisprudence; paradoxes of Justice Black - text, history and structure; popular sovereignty, the origins of judicial review and the revival of unwritten law; judicial review and modern judicial scholarship - a qustion of power; judicial review and democratic theory - guardian democracy vs. representative democracy; indeterminacy and constitutional theory - a critique of CLS and company.