The Constitution in Conflict
By (author) Robert A. Burt
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Constitution in Conflict by Robert A. Burt
Book DescriptionLincoln 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 shows in his provocative new book, this was not always the case, nor should it be. In a remarkably innovative 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 convincingly that judicial supremacy and majority rule are both inconsistent with the egalitarian democratic ideal. The proper task of the judiciary, he contends--as epitomized in Brown v. 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 v. Wade, U.S. v. 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. Thefirst 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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Book DetailsISBN: 9780674165373
(235mm x 155mm x 24mm)
Imprint: Harvard University Press
Publisher: Harvard University Press
Publish Date: 5-Apr-1995
Country of Publication: United States
Books By Author Robert A. Burt
In the Whirlwind, Hardback (April 2012)
In this bold exploration of the political theory of the Hebrew and Christian Bibles, Burt shows that God's authority is no less inherently problematic and in need of justification than the legitimacy of secular government. He paints a surprising picture of the ambivalent, mutually dependent relationship between God and his peoples.
Death is That Man Taking Names, Paperback (September 2004)» View all books by Robert A. Burt
Offers an account of psychological and social forces underlying American cultural attitudes toward death. This book maintains that unacknowledged ambivalence is likely to undermine the beneficent goals of post-1970s reforms and harm the very people these changes were intended to help.
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Author Biography - Robert A. Burt
Robert A. Burt is Alexander M. Bickel Professor of Law at Yale Law School.
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