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This innovative volume explores the evolution of constitutional doctrine as elaborated by the Supreme Court. Moving beyond the traditional "law versus politics" perspective, the authors draw extensively on recent studies in American Political Development (APD) to present a much more complex and sophisticated view of the Court as both a legal and political entity.
The contributors—including Pam Brandwein, Howard Gillman, Mark Graber, Ronald Kahn, Tom Keck, Ken Kersch, Wayne Moore, Carol Nackenoff, Julie Novkov, and Mark Tushnet—share an appreciation that the process of constitutional development involves a complex interplay between factors internal and external to the Court. They underscore the developmental nature of the Court, revealing how its decision-making and legal authority evolve in response to a variety of influences: not only laws and legal precedents, but also social and political movements, election returns and regime changes, advocacy group litigation, and the interpretive community of scholars, journalists, and lawyers.
Initial chapters reexamine standard approaches to the question of causation in judicial decision-making and the relationship between the Court and the ambient political order. Next, a selection of historical case studies exemplifies how the Court constructs its own authority as it defines individual rights and the powers of government. They show how interpretations of the Reconstruction amendments inform our understanding of racial discrimination, explain the undermining of affirmative action after Bakke, and consider why Roe v. Wade has yet to be overturned. They also tell how the Court has collaborated with political coalitions to produce the New Deal, Great Society, and Reagan Revolution, and why Native Americans have different citizenship rights than other Americans.
These contributions encourage further debate about the nature and processes of constitutional change and invite APD scholars to think about law and the Court in more sophisticated ways.
|Publisher:||University Press of Kansas|
|Edition description:||New Edition|
|Product dimensions:||6.00(w) x 9.00(h) x 1.18(d)|
Table of Contents
Introduction, Ronald Kahn and Ken I. Kersch
Part I: Rethinking the Law Versus Politics Dichotomy: The Internal and External in Supreme Court Decision Making
1. Legal, Strategic or Legal Strategy: Deciding to Decide during the Civil War and Reconstruction, Mark A. Graber
2. Social Constructions, Supreme Court Reversals, and American Political Development: Lochner, Plessy, Bowers, but Not Roe, Ronald Kahn
Part II: The Supreme Court and Governing Political Orders and Regimes
3. The Supreme Court and the National Political Order: Collaboration and Confrontation, Mark Tushnet
4. Party Politics and Constitutional Change: The Political Origins of Liberal Judicial Activism, Howard Gillman
5. The New Deal Triumph as the End of History? The Judicial Negotiation of Labor Rights and Civil Rights, Ken I. Kersch
Part III: Constructing Authoritative Constitutional Meaning
6. (Re)Construction of Constitutional Authority and Meaning: The Fourteenth Amendment and Slaughter-House Cases, Wayne D. Moore
7. The Civil Rights Cases and the Lost Doctrine of State Neglect, Pamela Brandwein
Part IV: Insiders and Outsiders: Development and the Construction of Constitutional Inclusion
8. Pace v. Alabama: Interracial Love, the Marriage Contract, and Postbellum Foundations of the Family, Julie Novkov
9. Constitutionalizing Terms of Inclusion: Friends of the Indian and Citizenship for Native Americans, 1880s-1930s, Carol Nackenoff
10. From Bakke to Grutter: The Rise of Rights-Based Conservatism, Thomas M. Keck
Conclusion: Supreme Court Decision Making and American Political Development, Ronald Kahn and Ken I. Kersch