The Intelligible Constitution: The Supreme Court's Obligation to Maintain the Constitution As Something We, the People, Can Understand

The Intelligible Constitution: The Supreme Court's Obligation to Maintain the Constitution As Something We, the People, Can Understand

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by Joseph Goldstein, Goldstein
     
 

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In Webster v. Reproductive Health Services, a critical abortion rights case, a bitterly divided Supreme Court produced no less than six different opinions. Writing for the plurality, Chief Justice Rehnquist attacked the trimester framework established in Roe v. Wade because it was "not found in the text of the Constitution or in any place else one would expect to find… See more details below

Overview

In Webster v. Reproductive Health Services, a critical abortion rights case, a bitterly divided Supreme Court produced no less than six different opinions. Writing for the plurality, Chief Justice Rehnquist attacked the trimester framework established in Roe v. Wade because it was "not found in the text of the Constitution or in any place else one would expect to find a constitutional principle." This approach, writes legal authority Joseph Goldstein, confuses constitutional principles (in this case, the right to privacy) with the means to protect them (here, the trimester system). As a result, the Court left the public bewildered about the constitutional scope of a woman's right to reproductive choice--failing in its duty to speak clearly to the American public about the Constitution. In The Intelligible Constitution, Goldstein makes a compelling argument that, in a democracy based upon informed consent, the Supreme Court has an obligation to communicate clearly and candidly to We the People when it interprets the Constitution. After a fascinating discussion of the language of the Constitution and Supreme Court opinions (including the analysis of Webster), he presents a series of opinion studies in important cases, focusing not on ideology but on the Justices' clarity of thought and expression. Using the two Brown v. Board of Education cases, Cooper v. Aaron, Regents of the University of California v. Bakke, and others as his examples, Goldstein demonstrates the pitfalls to which the Court has succumbed in the past: Writing deliberately ambiguous decisions to win the votes of colleagues, challenging each others' opinions in private but not in public, and not speaking honestly when the writer knows a concurring Justice misunderstands the opinion which he or she is supporting. Even some landmark decisions, he writes, have featured seriously flawed opinions--preventing We the People from understanding why the Justices reasoned as they did, and why they disagreed

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Editorial Reviews

From the Publisher
"Goldstein brilliantly expounds the Supreme Court's failure to discharge a major obligation—making the law of the Constitution understandable—and points the way to a cure. This book deserves a wide audience in addition to the nine persons in need of his message."—Judge Robert Bork

"A powerful call for clarity and candor in the writing of judicial opinions....His message is far-reaching."—Alan Dershowitz, The Boston Herald

"Very few books offer as high a return on as small an investment of time....Well worth reading."—ABA Journal

"This is a thoughtfully and beautifully written book about language and the law. It concerns the clarity or lack of clarity of the opinions of the Supreme Court of the United States....Goldstein is wise and bold in his diagnosis and in his prescription. His solution is what mathematicians call 'elegant.'"—Appellate Practice Journal

"The Intelligible Constitution...is persuasive, fascinating, and excellent!"—Roy M. Mersky, University of Texas at Austin

Product Details

ISBN-13:
9780195073287
Publisher:
Oxford University Press, USA
Publication date:
05/28/1992
Pages:
224
Product dimensions:
5.69(w) x 8.56(h) x 0.94(d)
Lexile:
1730L (what's this?)

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