Constitutional interpretation : illusion and reality / Jeffrey M. Shaman.

Format:

Book

Author/Creator:

Shaman, Jeffrey M.

Series:

Contributions in legal studies ; no. 97.

Contributions in legal studies, 0147-1074 ; no. 97

Language:

English

Subjects (All):

Judicial review--United States.

Judicial review.

Judicial process--United States.

Judicial process.

Constitutional law--United States.

Constitutional law.

Physical Description:

1 online resource (285 p.)

Edition:

1st ed.

Distribution:

London : Bloomsbury Publishing, 2024

Place of Publication:

Westport, Conn. : Praeger, 2000.

Language Note:

English

Summary:

This study analyzes the process of constitutional interpretation, that is, the methodology by which the Supreme Court goes about interpreting the Constitution, and offers a comprehensive view of constitutional law through the lens of history, political science, and jurisprudence. Shaman examines the practice of creating meaning for the Constitution, the dichotomy of legal formalism and realism, the levels of judicial scrutiny, the perception of reality, and the puzzle of legislative motive. While the book traces the historical development of constitutional law, its main focus is on modern jurisprudence, including analyses of the major themes of constitutional interpretation developed by the Warren, Burger, and Rehnquist Courts. Shaman details the Warren Court's move to a more realistic jurisprudence and its development of a multi-level system of judicial review that has become increasingly more complex under the Burger and Rehnquist Courts. He critiques the Supreme Court's reversion in recent years to an old-fashioned formalistic jurisprudence and the growing tendency of the Court to look to the past rather than to future to interpret the Constitution. The book also includes discussion of recent major doctrinal developments such as constitutional theory underlying Supreme Court decisions on gender discrimination, discrimination on the basis of sexual preference, the right to die, abortion, and freedom of speech.

Contents:

Cover

CONSTITUTIONAL INTERPRETATION

Contents

Preface

Introduction

NOTES

Chapter 1 Constitutional Creativity

THE HISTORIC FOUNDATION OF CONSTITUTIONAL CREATIVITY

THE THEORETICAL FOUNDATION OF CONSTITUTIONAL CREATIVITY

The Text of the Document

The Intent of the Framers

The Intent of the Ratifiers

THE POLITICAL FOUNDATION OF CONSTITUTIONAL CREATIVITY

CONCLUSION

Chapter 2 Formalism v. Realism

THE NATURE OF CATEGORIZATION

THE CATEGORICAL ILLUSION

THE NATURE OF BALANCING

SOME COMPARATIVE OBSERVATIONS ABOUT CATEGORIZATION AND BALANCING

CATEGORICAL BALANCING

THE NECESSITY OF BALANCING

Alternatives to Balancing

Precedent

Original Intent

History

Constitutional Purpose

United States Steel Corp. v. Multistate Tax Commission

A Last Grasp at an Alternative to Balancing

Chapter 3 The Levels of Scrutiny

MINIMAL SCRUTINY

UPGRADING MINIMAL SCRUTINY

STRICT SCRUTINY

INTERMEDIATE SCRUTINY

REHNQUIST AND SCALIA: FORAYS INTO WEAKENING INTERMEDIATE SCRUTINY

JUSTICE MARSHALL'S SLIDING SCALE OF SCRUTINY

FLAWS IN THE MULTI-TIER SYSTEM

Rigidity

Inhibition of Analysis

Internal Inconsistency

RESTRUCTURING THE SYSTEM

Chapter 4 Constitutional Fact: The Perception of Reality by the Supreme Court

THE MANIPULATION OF CONSTITUTIONAL FACT

THE MANIPULATION OF CONSTITUTIONAL FACT AND THE LEVELS OF SCRUTINY

The Levels of Scrutiny

Heightened Scrutiny of Constitutional Fact

Minimal Scrutiny of Constitutional Fact

Chapter 5 The Puzzle of Legislative Motive

THE TAINTED HERITAGE OF ASSESSING LEGISLATIVE MOTIVE

WHY LEGISLATIVE MOTIVE SUPPOSEDLY IS IRRELEVANT

Difficulty

Futility

Judicial Restraint

Necessary Extent of Illicit Motive

WHY SHOULD MOTIVE MATTER?.

WHEN LEGISLATIVE MOTIVE IS RELEVANT

The Religion Clauses

Freedom of Speech

Laws Motivated by a Bare Desire to Harm

Discriminatory Impact

ASCERTAINING PUBLIC MOTIVE-THE INITIATIVE AND REFERENDUM

Chapter 6 Case Study: The Theory of Low-Value Speech

DEVELOPMENT OF THE LOW-VALUE SPEECH THEORY

Fighting Words

Obscenity

Child Pornography

Sexually Explicit Expression

Profanity

Libel

Commercial Speech

PROPOSALS TO ADD NEW VARIETIES OF LOW-VALUE SPEECH

Pornography

Hate Speech

Tolerating Loathsome Speech

HOW HIGH-VALUE AND LOW-VALUE SPEECH ARE TREATED

Levels of Scrutiny

Approaches

Rules

DETERMINING THE VALUE OF SPEECH

THE BASIC VALIDITY OF THE LOW-VALUE SPEECH THEORY

THE LOW-VALUE SPEECH THEORY AND THE TECHNIQUE OF CATEGORIZATION

The Practice of Categorization

The Basis of Categorization

Chapter 7 The Vicissitudes of the Fourteenth Amendment

THE DISCARDED CLAUSE: PRIVILEGES OR IMMUNITIES

THE SUBSTITUTE CLAUSE: DUE PROCESS OF LAW

THE LAST REFUGE: EQUAL PROTECTION OF THE LAWS

Classifications

Fundamental Rights

CONCLUSION: A SURPRISING REVIVAL

Table of Cases

Index

About the Author.

Notes:

Bibliographic Level Mode of Issuance: Monograph

Includes bibliographical references and index.

ISBN:

9798400630965

9780313000973

0313000972

OCLC:

55002819