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Justice in Plainclothes

Justice in Plainclothes: A Theory of American Constitutional Practice

Lawrence G. Sager
Copyright Date: 2004
Published by: Yale University Press
Pages: 272
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  • Book Info
    Justice in Plainclothes
    Book Description:

    In this important book, Lawrence Sager, a leading constitutional theorist, offers a lucid understanding and compelling defense of American constitutional practice. Sager treats judges as active partners in the enterprise of securing the fundamentals of political justice, and sees the process of constitutional adjudication as a promising and distinctlydemocraticaddition to that enterprise. But his embrace of the constitutional judiciary is not unqualified. Judges in Sager's view should and do stop short of enforcing the whole of the Constitution; and the Supreme Court should welcome rather than condemn the efforts of Congress to pick up the slack.

    Among the surprising fruits of this justice-seeking account of American constitutional practice are a persuasive case for the constitutional right to secure a materially decent life and sympathy for the obduracy of the Constitution to amendment. No book can end debate in this conceptually tumultuous area; butJustice in Plainclothesis likely to help shape the ongoing debate for years to come.

    eISBN: 978-0-300-12919-9
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-xii)
  4. Introduction: The Puzzle of Our Constitutional Practice
    (pp. 1-11)

    This is a book foremost about the Constitution of the United States . . . more exactly, about constitutionalpracticein the United States. A constitution without more is a piece of paper or a mythic understanding that politicians invoke in times of particularly heated rhetoric. What makes a constitution interesting is what a people do with it. In the United States, we take the Constitution seriously, and a set of traditions and institutions has developed which makes it a meaningful part of our political life. These include the written Constitution itself; our relatively robust tradition of judicial decision-making that...

  5. CHAPTER 1 Accounts of Our Constitutional Practice
    (pp. 12-29)

    The project of this book is the development of the ‘‘justiceseeking account’’ of our constitutional practice. I’ve chosen the somewhat informal idea of anaccountin part to avoid being drawn into too lengthy a discussion of methodology. I hope not to succumb to the temptation to engage in the kind of conceptual throat-clearing that defers substance far too long. Still, we need some idea of what an account of our constitutional practice or any other social practice is meant to be, and what it is meant to accomplish.

    An account of a social practice is an articulate understanding of...

  6. CHAPTER 2 Judges as Agents of the Past: The Burdens of Originalism
    (pp. 30-41)

    Agency theories of the Constitution enjoy the great advantage of appealing to a simple and widely held model of the connection between judges and authoritative legal texts: The law speaks, and judges obey, full stop. The originalist protocol seems the unexceptional embodiment of this simple truth about the structure of legal authority. What more need be said on behalf of originalism, with its strict insistence that constitutional judges con-fine themselves to the instructions of the enacted Constitution?

    Rather a lot, actually. This blunt claim on behalf of originalism both misses important truths about the way that ordinary legislation works, and...

  7. CHAPTER 3 Enactment-Centered History as an Originalist Supplementation of the Text
    (pp. 42-57)

    In the face of the limited guidance provided by the Constitution’s text, how can originalists persevere? The most common strategy is to supplement the text of the Constitution with some other enactment-centered resource. Surely originalists are right in encouraging interpreters of the Constitution to view its formal text in the context of the circumstances surrounding its adoption. Reading the Equal Protection Clause in isolation from the Civil War and Reconstruction’s attempt to purge our political community not just of the moral scandal of slavery but of its durable cultural consequences would be a great mistake; and any attractive understanding of...

  8. CHAPTER 4 Three Rescue Attempts: Lean, Middling, and Thick
    (pp. 58-69)

    Before we turn to partnership accounts of the Constitution, we should consider attempts to rescue the agency account of the obligation of a constitutional judge. The first of these we might characterize asparsimoniousoriginalism.

    We have been at pains to support the observation that the Constitution’s text and its enactment-centered history simply cannot resolve most modern controversies. An originalist might see this as a false or shallow complaint. To the true originalist, the chips fall from an enactment-centered history where they may: If the text and context of the Constitution do not produce unequivocal answers to any given problem,...

  9. CHAPTER 5 Enter Partnership: The Justice-Seeking Account of Our Constitutional Practice
    (pp. 70-83)

    There are good reasons to see our constitutional practice in terms very different from the originalist, agency-centered account. The Constitution is not written like a tax code and has not been interpreted like one. Particularly in its liberty-bearing provisions, the Constitution offers broad structural propositions and moral generalities, and the judiciary has by and large accepted the obligation to fill in these general stipulations with concrete applications, to fashion workable and defensible conceptions of the Constitution’s moral concepts. To be sure, this broad concession of responsibility to the judiciary requires explanation and justification. But without this understanding of the judicial...

  10. CHAPTER 6 The Thinness of Constitutional Law and the Underenforcement Thesis
    (pp. 84-92)

    Justice-seeking theorists have the burden of explaining why the Constitution is so thin, why it stops so far short of justice if justice is its target. Constitutional law plainly does not address all of political justice. Consider, for example, these two claims: that members of our political community are entitled to economic arrangements that offer them minimally decent material lives in exchange for hard work on their own behalf; and that government is obliged to make reasonable efforts to undo structurally entrenched social bias against vulnerable racial groups and women. Neither of these principles has now or has ever had...

  11. CHAPTER 7 The Conceptual Salience of Underenforcement
    (pp. 93-128)

    Though startling on first encounter, perhaps, the underenforcement thesis is becoming more and more of a commonplace in constitutional discourse. Within the community of constitutional scholars, underenforcement is widely accepted, and forms an integral part of a good deal of contemporary constitutional analysis. And recently, within the constitutional judiciary itself, the idea of underenforcement has begun to enjoy a place on the conceptual agenda.

    But why does it matter whether we regard the discrepancy between the reach of constitutional case law and the reach of political justice as explainable—at least in important part—in terms of the limits of...

  12. CHAPTER 8 The Domain of Constitutional Justice
    (pp. 129-160)

    Even after we take judicial underenforcement of the Constitution into account, there remain good reasons for supposing that the Constitution itself addresses only a subset of justice. First, a satisfactory account of our constitutional practice must recognize and respond to our durable commitment to popular political institutions, and to our durable understanding that these institutions have broad leeway in managing our political affairs. Second, part of what should give us confidence in the underenforcement thesis are the reflections in established judicial doctrine of the constitutional structure it posits: In effect, we can detect trace elements of judicially unenforceable principles in...

  13. CHAPTER 9 The Birth Logic of a Democratic Constitution
    (pp. 161-193)

    The birth of our Constitution was marked by two prominent and connected features. First, the process by which the Constitution was proposed and ratified differed radically from the means for constitutional change specified in the extant legal order that preceded the Constitution. At the national level, the Articles of Confederation announced themselves to be perpetual, and required for amendment the vote of the Continental Congress followed by confirmation in the state legislature of each of the compacting states. In contrast, Article VII of the Constitution provided for ratification by special state conventions, and required the ratifi-cation of only nine of...

  14. CHAPTER 10 Democracy and the Justice-Seeking Constitution
    (pp. 194-221)

    ‘‘Democracy and the Justice-Seeking Constitution’’ . . . the herald of this, our last chapter, is intentionally loose-limbed. Our concern is only partially and only indirectly the question of whether the justice-seeking account of our constitutional practice is compatible with democracy. To some extent, we have already made our peace with democracy. On the one hand, we have seen that justice-seeking constitutionalism bows to popular political processes twice over: once in denying primary judicial enforcement to constitutional principles that come wrapped with questions of strategy and responsibility that properly belong to popular choice; and then again in shaping the domain...

  15. Conclusion
    (pp. 222-226)

    In June of 2003, when the manuscript for this book was in train, the Supreme Court decidedLawrence v. Texas.¹ InLawrence,the Court was confronted by a Texas law that described particular acts of sexual intimacy between persons of the same sex as ‘‘[d]eviate sexual intercourse,’’² and made engaging in those acts a criminal offense. In a sweeping decision, the Court held the Texas law unconstitutional:

    [This] case . . . involve[s] two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for...

  16. Notes
    (pp. 227-240)
  17. Index
    (pp. 241-248)