Words That Bind / Edition 1

Words That Bind / Edition 1

by John Arthur
     
 

ISBN-10: 0813323495

ISBN-13: 9780813323497

Pub. Date: 01/19/1995

Publisher: Westview Press


The words of the U.S. Constitution limit the possibilities of political action: they bind us in certain ways. How they bind us, however, depends upon how these words are interpreted and upon the distinctively American practice of judicial review.In Words That Bind, John Arthur examines conflicting theories of constitutional interpretation and judicial…  See more details below

Overview


The words of the U.S. Constitution limit the possibilities of political action: they bind us in certain ways. How they bind us, however, depends upon how these words are interpreted and upon the distinctively American practice of judicial review.In Words That Bind, John Arthur examines conflicting theories of constitutional interpretation and judicial review, arguing that each of the dominant legal approaches—from original intent to law and economics, from legal pragmatism to critical legal studies—rests on a distinct philosophical conception of democracy.Turning to recent work in political philosophy, Arthur explores the important but oft-ignored implications of both utilitarianism and social contract theory for constitutional interpretation and judicial review. He addresses such important and contested issues as the justification of rights, the rule of law, popular consent, equality, and feminist constitutional theory. The book makes an especially significant contribution through the fruitful interaction of two traditions: constitutional jurisprudence and contemporary political theory.Words That Bind presents a careful and nuanced treatment of a set of ideas and institutional forms absolutely central to U.S. democracy. Arguing that neither legal theory nor political philosophy can proceed independently of the other, Arthur illuminates both topics as no other recent author has.

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Product Details

ISBN-13:
9780813323497
Publisher:
Westview Press
Publication date:
01/19/1995
Pages:
248
Product dimensions:
6.00(w) x 9.00(h) x (d)
Lexile:
1600L (what's this?)

Table of Contents

Preface
Introduction1
1Enforcing the Social Contract: Original Intent7
The Origins of Judicial Review8
The Constitution as Contract17
Judicial Review and Original Intent23
Consent and the Social Contract24
Tacit Consent26
Originalism in Practice33
Constitutional Interpretation and Constitutional Purpose38
2Perfecting the Democratic Process45
The Meaning of Democracy46
Democratic Proceduralism48
Democracy as Fair Compromise53
The U.S. Constitution in Democratic Perspective57
Constitutional Theory and the Problem of Fit60
Is Democracy Self-Legitimizing?62
Strong Proceduralism68
3Critical Legal Studies and the Denial of Law75
Legal Discretion and Judicial Pragmatism76
Legal Indeterminacy and the Rule of Law80
Skepticism and Rights86
The Nature and Varieties of Rights88
The Critical Legal Studies Critique of Rights94
Objectivity, Justification, and Moral Skepticism96
Moral Objectivity and the Rule of Law104
4Promoting the General Welfare: Utilitarianism, Law, and Economics107
Why Utilitarianism109
The Nature of Welfare111
Economic Analysis114
Desires, Experiences, and the Problems of Measurement120
Rights and Judicial Review125
Precedent, History, and the Problems of Constitutional Deliberation132
Utilitarianism, Dignity, and Procedural Fairness140
5Democratic Contractualism and the Search for Equality145
Freedom as an Intrinsic and Instrumental Good147
Democratic Contractualism151
The Terms of the Social Contract159
Democratic Contractualism and Judicial Review168
Constitutional Interpretation and Neutral Public Discourse171
Illustrations180
Is Contractualism Male? Some Feminist Objections184
Notes191
About the Book and Author227
Table of Cases229
Index231

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