The rule of law in the United States : an unfinished project of Black liberation / by Paul Gowder.

Format:

Book

Author/Creator:

Gowder, Paul, author.

Series:

Rule of law in context ; v. 1.

Rule of law in context ; volume 1

Language:

English

Subjects (All):

African Americans--Legal status, laws, etc--History.

African Americans.

African Americans--Civil rights--History.

African Americans--Civil rights.

History.

Rule of law--United States--History.

Rule of law.

African Americans--Legal status, laws, etc.

United States.

Genre:

History.

Physical Description:

viii, 205 pages ; 24 cm.

Place of Publication:

Oxford ; London ; New York ; New Delhi ; Sydeny : Hart, 2021.

Summary:

"What is the American rule of law? Is it a paradigm case of the strong constitutionalism concept of the rule of law or has it fallen short of its rule of law ambitions? This book traces the promise and paradox of the American rule of law in three interwoven ways. It focuses on explicating the ideals of the American rule of law by asking: how do we interpret its history and the goals of its constitutional framers to see the rule of law ambitions its foundational institutions express? It considers those constitutional institutions as inextricable from the problem of race in the United States and the tensions between the rule of law as a protector of property rights and the rule of law as a restricter on arbitrary power and a guarantor of legal equality. In that context, it explores the distinctive role of Black liberation movements in developing the American rule of law. Finally, it considers the extent to which the American rule of law is compromised at its frontiers, and the extent that those compromises undermine legal protections Americans enjoy in the interior. It asks how America reflects the legal contradictions of capitalism and empire outside its borders, and the impact of those contradictions on its external goals"-- Provided by the publisher.

Contents:

Machine generated contents note: The Methodological Problem: What is the Rule of Law, Anyway?

The Black Liberation Rule of Law

Where We're Going

1. Madison's Theory of General Law versus Property and Slavery

The Special Position of Property

The Affinity between Republican Property and Liberal Property

Republican Property and Slavery

Slavery as Lawlessness

Slavery as Property

Internal Tensions in the Law of Slavery as Property

The Impossibility of Holding Slavery within its Bounds

Dred Scott as the Triumph of Property Over Personhood

Slavery, Land, and Territorial Expansion

2. The Fugitive Slave Acts, Judicial Independence, and the Jury

Judicial Independence and the Jury

Juries as Popular Legalism

Fugitive Slave Act of 1850: The Return of the Vice-Admiralty Court

The Rule of Law Debate about Northern Resistance to Slavery

The Inevitability of the State of War

3. Reconstruction and the Black Liberation Rule of Law

Black Authorship of the Reconstruction Amendments

Martin Luther King Jr, Rule of Law Theorist

Due Process and Equal Protection

Due Process: The Protections of Judicial Procedure

Pushing the Bounds of What We Call `Property'

The Problem of Substantive Due Process

Equal Protection and General Law

The Anti-Classification Response to the Problem of Generality

Process and Protection Together: The Path Not Taken

4. Turning the Constitution Around: Black Liberation and the Rule of Law in the Last Century

Judge Lynch's Affront to the Rule of Law

The Second Liberation Movement: From Anti-Lynching to Criminal Justice

From the Black Panthers to the Movement for Black Lives

5. Security and Discretion: The Problem of Executive Power

Police as Executives: The Problem of Discretion in Street-Level Criminal Justice

Ex Ante Police Discretion: Street-Level Arbitrary Power

Ex Post Police Discretion: The Qualified Immunity Doctrine

Segregation and Policing: How Property Rights and Local Quasi-Federalism Can Undermine the Rule of Law

From Policing to National Security

Presidential Power in the National Security State

The Schmittian Dilemma

6. The Gavel and the Fist: The Problem of Sovereignty and Borders

The Plenary Power

The Courts of the Conqueror

Expropriation in the Schmittian Judiciary

The Plenary Power Doctrine is Indefensible

Immigration `Court': Barely Adjudication at All

Expedited Removal: For When Executive Adjudication is Still Too Fair

The Tendency of Arbitrary Power to Metastasize Throughout the Legal System

Immigration Outlawry Harms Citizens Too

Immigration Outlawry Corrupts the System as a Whole

Lawless Racism: The Challenge to Birthright Citizenship

Conclusion: Is there Any Hope for an American Rule of Law?

The Washington Consensus: Here Comes Property Again

The Crisis of the American Rule of Law: Reflections on Donald Trump

The Danger of Legal Alienation.

Notes:

Includes bibliographical references (pages 182-200) and index.

Other Format:

Online version: Gowder, Paul. Rule of law in the United States.

ISBN:

9781509939992

1509939997

9781509954667

150995466X

OCLC:

1252962599

Publisher Number:

99989947154