By Philip Bobbitt

Right here, Philip Bobbitt reports the root for the legitimacy of judicial overview through analyzing six forms of constitutional argument--historical, textual, structural, prudential doctrinal, and ethical--through the weird approach to contrasting sketches of well known criminal figures responding to the constitutional crises in their day. Examines the attribute different types of constitutional argument in which judicial evaluation is  Read more...

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Can on e imagine , Bradle y aske d i n a variation o f th e rhetorica l questio n pose d b y th e Chisholm dis sent, what would have been th e outcr y i f the Elevent h Amendment ha d qualifie d it s prohibitio n b y adding tha t th e Unite d States judicial powe r ma y nevertheles s exten d t o suit s agains t states brough t b y thei r ow n citizens? 46 An d s o Bradle y con strued—no, construed i s the wron g word—reconstructed th e Eleventh Amendmen t t o gover n suit s b y a corporation create d by Act of Congress, suits by persons of whatever citizenship i n admiralty, an d suit s by a foreig n state .

In a relate d way , textual argument s ar e inappropriat e ve hicles for accommodating arguments in areas where conceptual change ha s outpace d absorptio n int o everyda y language. Economics is one suc h area. I t was , one shoul d note , T. R . " 22 Textua l argument s als o d o no t al low the mid-cours e correction s tha t ar e th e indispensabl e navigational devices of common la w development; languag e simply does no t change tha t quickly. Nor i s language use , b y itself, a guide . I t i s thrilling t o se e Justice Blac k taking a swin g at th e Gordia n Kno t of economi c due proces s b y suggesting tha t corporation s ar e no t "persons " within th e Fourteent h Amendment.

The lat e Professo r Hart was its chief theoretician, an d hi s great work s have dominated th e discussio n o f constitutiona l la w for th e las t quarte r century. Hart's answe r to the realis t questio n an d hi s reformulation of doctrina l argumen t hav e changed th e matri x fro m th e ap plication of precedential, substantive rules t o the application of DOCTRINAL ARGUMEN T 4 3 rules of precedential process . It' s not what judges do, Har t tol d us, it' s how they d o it . Grantin g tha t substantiv e fairness i s a matter o f ideology , th e doctrina l approac h hold s tha t fairness will result , regardles s o r eve n i n spit e o f th e judges' biases , i f methods o f judging whic h al l concede t o b e fai r ar e followe d scrupulously.

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Constitutional Fate : Theory of the Constitution by Philip Bobbitt

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