Revolution by Judiciary: The Structure of American Constitutional Law

by Jed Rubenfeld

Overview

Although constitutional law is supposed to be fixed and enduring, its central narrative in the twentieth century has been one of radical reinterpretation—Brown v. Board of Education, Roe v. Wade, Bush v. Gore. What, if anything, justifies such radical reinterpretation? How does it work doctrinally? What, if anything, structures it or limits it?

Jed Rubenfeld finds a pattern in American constitutional interpretation that answers these questions convincingly. He posits two different understandings of how constitutional rights would apply or not apply to particular legislation. One is that a right would be violated if certain laws were passed. The other is that a right would not be violated. He calls the former "Application Understandings" and the latter "No-Application Understandings." He finds that constitutional law has almost always adhered to all of the original Application Understandings, but where it has departed from history, as it did in the Brown decision, it has departed from No-Application Understandings. Specifically, the Fourteenth Amendment did not prohibit racial segregation, so Rubenfeld argues that the Supreme Court had no problem reinterpreting it to prohibit it. It was a No-Application Understanding.

This is a powerful argument that challenges current theories of constitutional interpretation from Bork to Dworkin. It rejects simplistic originalism, but restores historicity to constitutional theorizing.

Product Details

ISBN-13:	9780674017153
Publisher:	Harvard University Press
Publication date:	06/30/2005
Edition description:	New Edition
Pages:	252
Product dimensions:	6.12(w) x 9.25(h) x 0.75(d)

About the Author

Jed Rubenfeld is Robert R. Slaughter Professor of Law, Yale Law School.

Table of Contents

Acknowledgments

I. THE STRUCTURE OF CONSTITUTIONAL LAW

1. Introduction: Radical Reinterpretation

2. Rights

3. Powers

II. COMMITMENT, INTENTION, AND SELF-GOVERNMENT

4. The Paradox of Commitment

5. Commitments and Original Understandings

6. Two Objections

III. CONSTITUTIONAL LAW TODAY

7. Has Constitutional Law Stopped Making Sense?

8. The Anti-Anti-Discrimination Agenda

9. Sex, Commerce, Preferences

Notes

Index

What People are Saying About This

This brilliant book makes an enduring contribution to constitutional interpretation, developing insights and techniques that greatly enrich our collective commitment to the rule of law.

James E. Fleming

Rubenfeld's account of the structure of American constitutional law – in terms of the distinction between Application Understandings and No-Application Understandings – is original, elegant, and illuminating. In developing this account, and his commitmentarian theory of constitutional self-government, he provides a compelling alternative to originalism and a powerful challenge to the moral reading of the Constitution.
— James E. Fleming, Fordham University School of Law

Akhil Reed Amar

Jed Rubenfeld is the most gifted constitutional theorist (not to mention the most elegant legal writer) of his generation. In this supremely ambitious and engaging book, he unfolds his unique commitment-based account of American constitutionalism and the nature of judicial review.
— Akhil Reed Amar, author of,America's Constitution: A Biography

Bruce Ackerman

This brilliant book makes an enduring contribution to constitutional interpretation, developing insights and techniques that greatly enrich our collective commitment to the rule of law.
— Bruce Ackerman, author of The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy

Editorial Reviews

This brilliant book makes an enduring contribution to constitutional interpretation, developing insights and techniques that greatly enrich our collective commitment to the rule of law.

Bruce Ackerman

Jed Rubenfeld is the most gifted constitutional theorist (not to mention the most elegant legal writer) of his generation. In this supremely ambitious and engaging book, he unfolds his unique commitment-based account of American constitutionalism and the nature of judicial review.

Akhil Reed Amar

Rubenfeld's account of the structure of American constitutional law – in terms of the distinction between Application Understandings and No-Application Understandings – is original, elegant, and illuminating. In developing this account, and his commitmentarian theory of constitutional self-government, he provides a compelling alternative to originalism and a powerful challenge to the moral reading of the Constitution.

James E. Fleming