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1 - Introduction

Published online by Cambridge University Press:  09 November 2009

Ken I. Kersch
Affiliation:
Princeton University, New Jersey
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Summary

This is a book about the paths of constitutional development culminating in the U.S. Supreme Court's landmark civil liberties and civil rights jurisprudence of the 1960s and 1970s. The roads to Mapp v. Ohio (1961) (search and seizure/privacy), University of California Board of Regents v. Bakke (1978) (affirmative action), Engle v. Vitale (1962) (separation of church and state), and other emblematic decisions marking the high tide of twentieth-century constitutional liberalism, I argue here, should be understood not as the issue of a single, linear and unidimensional path marked by the post–New Deal Court's newfound willingness to protect “personal” (as opposed to “economic”) rights and liberties, and tracing out the implications for particular fact scenarios of abstract principles such as “privacy,” “liberty,” or “equality.” These doctrinal landmarks are, rather, the diverse endpoints of a layered succession of progressive spirited ideological and political campaigns of statebuilding and reform. In the heat of these campaigns – whose center was typically outside the Court – it was apparent to the participants that key rights and liberties conflicted, and the meaning of both was contested. As such, it was understood by those animated by a strong substantive vision that some key rights and liberties would have to be jettisoned or circumscribed to advance others. Only after these campaigns succeeded, as part of the process of ideological institutionalization, were backwards-looking narratives created – off the Court and on – that worked to legitimate these achievements as rights-protecting triumphs and part of a linear, teleological march of progress.

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Chapter
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Constructing Civil Liberties
Discontinuities in the Development of American Constitutional Law
, pp. 1 - 26
Publisher: Cambridge University Press
Print publication year: 2004

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  • Introduction
  • Ken I. Kersch, Princeton University, New Jersey
  • Book: Constructing Civil Liberties
  • Online publication: 09 November 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511606809.001
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  • Introduction
  • Ken I. Kersch, Princeton University, New Jersey
  • Book: Constructing Civil Liberties
  • Online publication: 09 November 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511606809.001
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Introduction
  • Ken I. Kersch, Princeton University, New Jersey
  • Book: Constructing Civil Liberties
  • Online publication: 09 November 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511606809.001
Available formats
×