By Renata Uitz

ISBN-10: 9637326383

ISBN-13: 9789637326387

Emphasizes the position historical past and old narratives play in constitutional adjudication. Uitz provocatively attracts consciousness to the often-tense courting among the structure and old priority highlighting the interpretive and normative nature of the legislations. Her paintings seeks to appreciate the stipulations below which references to the earlier, heritage and traditions are beautiful to attorneys, even if they've got the possibility of perpetuating indeterminacy in constitutional reasoning. Uitz conclusively argues that this constitutional indeterminacy is obscured through 'judicial rhetorical toolkits' of continuity and reconciliation that let the court's reliance at the prior to be unaccounted for. Uitz' rigorous research and large learn makes this paintings an asset to felony students and practitioners alike. The inquiry during this quantity hopes to draw observers of constitutional adjudication, may well they be studying constitutional jurisprudence from the quarters of constitutional legislations, constitutional historical past, political technology or heritage departments.

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1. 1. History and tradition as accounts of the past: the need for a better distinction, or time to adopt a (not so) new methodology? The relationship between references to history and accounts of traditions is a complex and somewhat controversial one. On a primary level, the encounter between accounts of history and of tradition can be cast as hard facts meeting potentially unfounded or twisted generalizations. Finding that “[t]radition is a heavily edited anthology of the past, and much of the past fails to participate in it at all”, Luban makes an attempt to distinguish between arguments in history and tradition in constitutional reasoning.

It is exactly this premise that divides the two stances so sharply. While the Chief Justice defines the court’s proper role with a narrow focus on establishing and preserving the “proper understanding of the Constitution”, Justice O’Connor places the court in the much more volatile reality, marked by controversies on fundamentals deeply divisive of the polity. It is in this context that such seemingly non-legal factors as the passage of time changing peoples’ ways and minds are significant for constitutional jurisprudence.

While Lochner was not the first case in which the concept of the liberty of contract arose, it was the first and to date the strongest articulation of its protection —a clear departure from a relatively settled professional understanding (status quo) of the scope and applicability of the Due Process Clause. After three decades the Supreme Court overruled Lochner and abandoned economic substantive due process. Nonetheless, lochnerizing has become a synonym for limitless judicial activism. S. constitutional law from the perspective of the professional status quo, while concern for the status quo of the market is fading in accounts of economic substantive due process.

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Constitutions, Courts and History: Historical Narratives in Constitutional Adjudication by Renata Uitz


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