Skip to main content Accessibility help
×
Hostname: page-component-76fb5796d-45l2p Total loading time: 0 Render date: 2024-04-27T19:38:50.991Z Has data issue: false hasContentIssue false

2 - Freedom and Equality in Constitutional History

Published online by Cambridge University Press:  17 December 2010

Ronald C. Den Otter
Affiliation:
California Polytechnic State University
Get access

Summary

In the previous chapter, I described the limitations of formalist approaches to constitutional adjudication to explain why judges often must look outside the law for normative guidance. That is why an ideal of public justification is indispensable to constitutional adjudication. In this chapter, I begin to articulate what public justification is, why it is important, what it can accomplish, and how it could guide judges when they delineate the constitutional limits on the coercive power of the state. In particular, I will explain how such a normative standard would facilitate the evaluation of the quality of constitutional arguments, thus making it possible to know when a public law or judicial decision is sufficiently publicly justified and therefore legitimate. That does not mean that a standard of public justification would dictate a single result in a hard constitutional case or that all reasonable people would always agree that the judicial opinion in question meets or fails to meet that standard. After all, legal reasoning never has been, and never will be, deductive. At the same time, when discretion is inescapable, I will show how such a standard would not only generate the right answers in easy cases but also help judges to identify the relevant reasons and weigh them appropriately even in the hardest of hard cases. The use of such a standard would clarify what counts as a good or bad reason in constitutional decision making and address the skeptical worry that there is no right or better answer to the most important constitutional questions.

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2009

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), ixGoogle Scholar
Macedo, Stephen, The New Right v. the Constitution (Washington, D.C.: Cato Institute, 1987), 60–1Google Scholar
Thayer, James B., “The Origin and Scope of the American Doctrine of Constitutional Law,” 7 Harvard Law Review (1893), 138–52CrossRefGoogle Scholar
Bedi, Sonu, Rejecting Rights: The Turn to Justification (New York: Cambridge University Press, 2009)CrossRefGoogle Scholar
Schauer, Frederick, Free Speech: A Philosophical Inquiry (New York: Cambridge University Press, 1982), 204Google Scholar
Roosevelt, Kermit, The Myth of Judicial Activism (New Haven, CT: Yale University Press, 2007), 73–4Google Scholar
Schwartz, Bernard, Super Chief: Earl Warren and His Supreme Court – A Judicial Biography (New York: New York University Press, 1983), 12–14Google Scholar
Amar, Akhil Reed, The Constitution and Criminal Procedure: First Principles (New Haven, CT: Yale University Press, 1997), 88Google Scholar
Bork, Robert H., The Tempting of America: The Political Seduction of the Law (New York: Simon and Schuster, 1990), 98Google Scholar
Wolfe, Alan, Moral Freedom: The Impossible Idea That Defines the Way We Live Now (New York: W. W. Norton, 2001), 195Google Scholar
Jeffries, John C., Justice Lewis F. Powell: A Biography (New York: Fordham University Press, 2001), 530Google Scholar
Finnis, John, “Is Natural Law Theory Compatible with Limited Government?” in Natural Law, Liberalism, and Morality: Contemporary Essays, ed. George, Robert P. (Oxford, U.K.: Clarendon Press, 1996), 17Google Scholar
Macedo, Stephen, “Sexuality and Liberty: Making Room for Nature and Tradition?” in Sex, Preference, and the Family: Essays on Law and Nature, ed. Estlund, David M. and Nussbaum, Martha C. (New York: Oxford University Press, 1997), 92Google Scholar
Dworkin, Ronald et al., “Assisted Suicide: The Philosophers' Brief,” 44 New York Review of Books, March 27, 1997Google ScholarPubMed
Greenberg, Jan Crawford, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (New York: Penguin Books, 2008), 18–19Google Scholar
Shklar, Judith N.'s American Citizenship: The Quest for Inclusion (Cambridge, MA: Harvard University Press, 1991)Google Scholar
Wood, Gordon S., “The Fundamentalists and the Constitution,” New York Review of Books, February 18, 1988, 37–40Google Scholar
Wechsler, Herbert, “Toward Neutral Principles of Constitutional Law,” 23 Harvard Law Review (1959), 1CrossRefGoogle Scholar
Balkin, Jack M., “Brown as Icon,” in What Brown v. Board of Education Should Have Said: The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decision, ed. Balkin, Jack M. (New York: New York University Press, 2001), 4Google Scholar
Schwartz, Bernard, A History of the Supreme Court (New York: Oxford University Press, 1993), 293Google Scholar
Waldron, Jeremy J., “Legislation,” in The Blackwell Guide to the Philosophy of Law and Legal Theory, ed. Golding, Martin P. and Edmundson, William A. (Malden, MA: Blackwell Publishing, 2005), 237Google Scholar
Schwartz, Bernard, A History of the Supreme Court (New York: Oxford University Press, 1993), 105–25Google Scholar
Mayhew, David, Congress: The Electoral Connection (New Haven, CT: Yale University Press, 1974)Google Scholar
Fenno, Richard F., Homestyle: House Members on Their Districts (Glenview, IL: Scott Foresman, 1978)Google Scholar
Poole, Keith T. and Rosenthal, Howard, Congress: A Political-Economic History of Roll Call Voting (New York: Oxford University Press, 1997)Google Scholar
Tribe, Lawrence H., The Invisible Constitution (New York: Oxford University Press, 2008), 131Google Scholar
Rawls, John, A Theory of Justice: Revised Edition (Cambridge, MA: Harvard University Press, Belknap Press, 1999), 72Google Scholar
Rawls, John, Political Liberalism (New York: Columbia University Press, 1996), 228–9Google Scholar

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

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 Dropbox.

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.

Available formats
×