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Constitutional Dialogues

Constitutional Dialogues: Interpretation as Political Process

Louis Fisher
Copyright Date: 1988
Pages: 316
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  • Book Info
    Constitutional Dialogues
    Book Description:

    Who makes constitutional law? Is constitutional doctrine the monopoly of the courts? In accessible and persuasive prose Louis Fisher explains that constitutional law is not solely or even primarily the Supreme Court's "final word" but rather a richly political convergence of separate interpretations. With a broad range of examples, he argues that constitutional principles emerge from a dialogue among all three branches of government--executive, legislative, and judicial. Important contributions also come from the states and the general public. Fisher identifies executive and legislative initiatives in many areas of constitutional significance. Where there is litigation, the Court generally upholds these initiatives or may avoid making a constitutional decision by using "threshold devices." On those rare occasions when the Supreme Court exercises judicial review and strikes down a presidential or congressional action, it is usually only a matter of time before the proposal is revived and the dialogue begins again.

    Originally published in 1988.

    ThePrinceton Legacy Libraryuses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

    eISBN: 978-1-4008-5957-3
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-2)
  4. Introduction
    (pp. 3-8)

    The purpose of this book is to show that constitutional law is not a monopoly of the judiciary. It is a process in which all three branches converge and interact with their separate interpretations. Important contributions also come from the states and the general public.

    The theme itself is not new. InThe Least Dangerous Branch(1962), Alexander Bickel said that the courts find themselves engaged in a “continuing colloquy” with political institutions and society at large, a process in which constitutional principle is “evolved conversationally not perfected unilaterally.” Recent studies by John Agresto, Sotirios Barber, and Walter Murphy emphasize...

  5. 1. Public Law and Politics
    (pp. 9-43)

    For those who teach constitutional law, the relationship between the judiciary and politics remains an awkward topic. Technical details of a decision have a way of driving out the political events that generate a case and influence its disposition. To infuse law with dignity, majesty, and perhaps a touch of mystery, it is tempting to separate the courts from the rest of government and make unrealistic claims of judicial independence.

    Legal scholars who explored this relationship early in the twentieth century were discouraged by traditional leaders of the legal profession. To speak the truth, or even search for it, threatened...

  6. 2. The Doctrine of Judicial Review
    (pp. 44-84)

    Judicial review in America has managed to survive a number of nagging, unresolved questions. By what right do life-tenured judges invalidate policies adopted by popularly elected officials? If judicial review is of such crucial importance for a written Constitution, why did the framers omit it? Why is it based on implied, rather than explicit, power? If judicial review is essential for a constitutional democracy, how do other nations preserve their constitutions without judicial review?

    At some point judicial review assumes the characteristics of lawmaking. Constitutional interpretation is more than a technical exercise or display of judicial erudition. The power to...

  7. 3. Threshold Requirements: Husbanding Power and Prestige
    (pp. 85-118)

    The scope of judicial review is circumscribed by rules of self-restraint fashioned by judges. Various court doctrines sketch out the minimum qualities needed to adjudicate a case. These thresholds (or “gatekeeping rules”) do more than limit access by litigants. They shield judges from cases that threaten their independence and institutional effectiveness. They ration scarce judicial resources and postpone or avoid decisions on politically sensitive issues. Their abandonment may signal new paths to be followed by an activist court.

    Chief Justice Marshall suggested that the boundaries for judicial action were quite fixed: “It is most true that this Court will not...

  8. 4. Judicial Organization
    (pp. 119-161)

    It is tempting to dismiss judicial organization as a technical or esoteric matter. Yet organizational issues present questions of power. Changes in institutional boundaries and processes dramatically affect the flow of power at the federal-state level and among the three branches of the national government. The process of appointing judges is heavily lobbied by all sectors, public and private. Judicial tenure, removal, and compensation are perennial sources of conflict. The appropriate role of judicial lobbying remains a subject of great sensitivity.

    Long before the American colonies declared their separation from England, the idea of an independent judiciary had secured a...

  9. 5. Decisionmaking: Process and Strategy
    (pp. 162-199)

    Publication ofThe Brethrenin 1979 promised a rare glimpse into the inner sanctum of the Supreme Court. The authors claimed that for nearly two centuries the Supreme Court had made its decisions “in absolute secrecy.”¹ In fact, the deliberative process of the Court has been studied and scrutinized for years. Scholars have had access to internal memoranda, conference notes, diaries, draft opinions, and correspondence by the Justices. Members of the Court and their law clerks publish widely. Drawing on those materials, we have a fairly detailed picture of the process that Justices use to make decisions.²

    The Supreme Court...

  10. 6. Efforts to Curb the Court
    (pp. 200-230)

    Justice Stone once lectured his brethren: “the only check upon our own exercise of power is our own sense of self-restraint.”¹ While that is an important check, it is by no means the only one. Judges act within an environment that constantly tests the reasonableness and acceptability of their rulings. Courts hand down the “last word” only for an instant, for after the release of an opinion the process of interaction begins: with Congress, the President, executive agencies, states, professional associations, law journals, and the public at large.

    Earlier chapters identified some of the constraints that operate on the judiciary:...

  11. 7. Coordinate Construction
    (pp. 231-274)

    The study of constitutional law is devoted almost entirely to the workings of the judiciary. Even those who explore the politics of constitutional law do so on the assumption that the ultimate act of constitutional interpretation is the prerogative of the courts. The writings of legal realists and, more recently, the Critical Legal Studies school abound with insights concerning the interactions between courts and the world around them. The legal realists recognized that judges make law, despite protestations to the contrary in court decisions, and the critical legal studies group routinely accepts decisions as political pronouncements that affect class relationships....

  12. Conclusion
    (pp. 275-280)

    Justice Brandeis observed that “the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.”¹ The judiciary’s record of the past two centuries supports his perception. The process is eminently one of trial and error. At times the Court will admit its errors of constitutional interpretation and reverse a previous decision. Some members of the Court have the intellectual integrity to adopt Justice Jackson’s attitude: “I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.”² Others, under the spell of stare decisis, will stick doggedly...

  13. Suggested Readings
    (pp. 281-290)
  14. Index of Cases
    (pp. 291-302)
  15. General Index
    (pp. 303-306)