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The Unpredictable Constitution

The Unpredictable Constitution

EDITED BY Norman Dorsen
Copyright Date: 2002
Published by: NYU Press
Pages: 347
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  • Book Info
    The Unpredictable Constitution
    Book Description:

    The Unpredictable Constitution brings together a distinguished group of U.S. Supreme Court Justices and U.S. Court of Appeals Judges, who are some of our most prominent legal scholars, to discuss an array of topics on civil liberties. In thoughtful and incisive essays, the authors draw on decades of experience to examine such wide-ranging issues as how legal error should be handled, the death penalty, reasonable doubt, racism in American and South African courts, women and the constitution, and government benefits. Contributors: Richard S. Arnold, Martha Craig Daughtry, Harry T. Edwards, Ruth Bader Ginsburg, Betty B. Fletcher, A. Leon Higginbotham, Jr., Lord Irvine of Lairg, Jon O. Newman, Sandra Day O'Connor, Richard A. Posner, Stephen Reinhardt, and Patricia M. Wald.

    eISBN: 978-0-8147-8546-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgments
    (pp. vii-viii)
  4. Introduction
    (pp. 1-6)
    Norman Dorsen

    It would have been hard to foretell, or even to imagine, a more startling constitutional event than the Supreme Court decisions inBush v. Gore, which were rendered as this book was being prepared for press. The rulings determined the 2000 presidential election, in a scenario that was almost unthinkable to those familiar with the Court’s history and practices. The case is a perfect prelude to a book dedicated to the “unpredictable” Constitution.

    It was not merely that the case was “political” in the sense that it decisively affected the political direction of the country for at least the next...

  5. Chapter 1 Government Benefits: A New Look at an Old Gift Horse
    (pp. 7-25)
    Patricia M. Wald

    Tonight I am going to talk about an old problem in constitutional law: the volatile relationship between constitutional rights and government benefits. In my view, the jury-rigged doctrine of rights and benefits we are now living with deserves serious reconsideration. One aspect of that doctrine—unconstitutional conditions—may still be in flux but is moving swiftly backwards; another—fourteenth amendment procedural due process rights—seems static for the moment, mired in unattractive premises. In the current climate, many civil libertarians dread the idea of unsettling precedent. They would, in Hamlet’s words, “rather bear the ills we have, than fly to...

  6. Chapter 2 Racism in American and South African Courts: Similarities and Differences
    (pp. 26-56)
    A. Leon Higginbotham Jr.

    More than a century ago, William Goodell observed that: “No people … were ever yet found who were better than their laws, though many have been known to be worse.”¹ Similarly, I submit that in the United States and in South Africa, the justice that blacks, the powerless, and the near powerless encounter in the daily events of their lives is no better, and is probably worse, than the experiences they encounter in their courts.

    In this article, I have chosen the issue of racism in the courts because the courts, in any society, should exemplify the nation’s best and...

  7. Chapter 3 Portia’s Progress
    (pp. 57-70)
    Sandra Day O’Connor

    I am very happy to be celebrating with you the One Hundredth Anniversary of Women Graduates from New York University School of Law. New York University showed great foresight by admitting women law students before the turn of the century. It was one of the first major law schools to do so. Columbia Law School did not admit women until 1927; Harvard Law School did not admit women until 1950. In fact, New York University flouted the wishes of Columbia Law School committee member George Templeton Strong, who had written in his diary: “Application from three infatuated Young Women to...

  8. Chapter 4 Speaking in a Judicial Voice
    (pp. 71-100)
    Ruth Bader Ginsburg

    The Madison Lecture series has exposed and developed two main themes: human rights and the administration of justice, particularly in our nation’s federal courts.¹ My remarks touch on both themes; I will speak first about collegiality in style, and next about moderation in the substance of appellate decision making. My views on these matters reflect experiences over a span of three decades. They have been shaped by my years as a law teacher beginning in the 1960s, through the 1970s when I helped to launch the American Civil Liberties Union’s Women’s Rights Project, and most recently during the nearly thirteen...

  9. Chapter 5 Beyond “Reasonable Doubt”
    (pp. 101-127)
    Jon O. Newman

    The James Madison Lectures were inaugurated “to enhance the appreciation of civil liberty and strengthen the national purpose.”¹ A lecture named for the principal architect of the Bill of Rights could aspire to no lesser goal. I hope I do not stray outside the lofty objective of this distinguished series by focusing on a right that is not mentioned in Madison’s handiwork and was not given formal recognition as comprehended within the general language of the Bill of Rights until 1970,² although assumed by the Supreme Court to be a requirement, at least in the federal courts, as early as...

  10. Chapter 6 The Death Penalty in America: Can Justice Be Done?
    (pp. 128-146)
    Betty B. Fletcher

    James Madison might be surprised to hear the topic I have chosen for the lecture that bears his name. Madison neither championed nor deplored the death penalty. He apparently gave it little thought, for there is almost no reference to it in his voluminous writings. It is not discussed inThe Federalist Papers.¹ The Constitution mentions it only by implication in the Fifth Amendment, forbidding the deprivation of life without due process of law.²

    Madison did promote Thomas Jefferson’s legal reforms for Virginia, which included a provision to restrict capital crimes to murder and treason.³ But Madison criticized this provision...

  11. Chapter 7 To Err Is Human, but Not Always Harmless: When Should Legal Error Be Tolerated?
    (pp. 147-189)
    Harry T. Edwards

    Assume an appellate judge must decide the following case:

    Joe Didit, who is six feet five inches tall, about two hundred and seventy pounds, Caucasian, and bald-headed, was recently tried for the murder of a convenience-store proprietor. The indictment charged that, sometime near midnight on the evening in question, Didit entered the convenience store with a loaded gun, intending to rob the proprietor. It was further charged that, when he faced resistance from his victim, Didit purposefully shot the proprietor in the head and face six times, and then fled the store. Two customers, who were in the store at...

  12. Chapter 8 How James Madison Interpreted the Constitution
    (pp. 190-216)
    Richard S. Arnold

    The topic I have chosen is “How James Madison Interpreted the Constitution.” As I sat down to write, I realized that this title is itself ambiguous. It could refer to the various substantive positions Madison took on constitutional questions throughout his life—whether the Bank of the United States was constitutional, whether Congress could build roads and canals, and the like. Or it could refer to methodology—did Madison believe in “original intent,” to use that dread phrase so familiar in modern controversy, was he a textualist, and so forth. I intend the phrase to be understood primarily in the...

  13. Chapter 9 Against Constitutional Theory
    (pp. 217-238)
    Richard A. Posner

    Constitutional theory, as I shall use the term, is the effort to develop a generally accepted theory to guide the interpretation of the Constitution of the United States. It is distinct on the one hand from inquiries of a social scientific character into the nature, provenance, and consequences of constitutionalism—the sort of thing one associates mainly with historians and political scientists, such as Charles Beard, Jon Elster, and Stephen Holmes—and on the other hand from commentary on specific cases and doctrines, the sort of thing one associates with legal doctrinalists, such as Kathleen Sullivan, Laurence Tribe, and William...

  14. Chapter 10 The Anatomy of an Execution: Fairness versus “Process”
    (pp. 239-282)
    Stephen Reinhardt

    The year I graduated from law school, the Warren Court decidedBrown v. Board of EducationBrown, perhaps the most important Supreme Court decision in history, introduced a new judicial era, an era in which the courts became the protectors of the rights of the poor, the disenfranchised, and the underprivileged. The Warren Court—the Warren-Brennan era—will be remembered for that legacy. The Court’s decisions were guided by a broad, humanitarian vision of the role of the judiciary and of the Constitution as a living document. The Warren Court expanded concepts of equality, due process, and individual liberty, handing...

  15. Chapter 11 Women and the Constitution: Where We Are at the End of the Century
    (pp. 283-308)
    Martha Craig Daughtrey

    [In 1999] theABA Journalpublished a cover story on the renewed efforts to amend the U.S. Constitution to prohibit discrimination on the basis of gender.³ As it turns out, the Equal Rights Amendment (ERA) which, if ratified, would have become the twenty-seventh amendment to the Federal Constitution⁴—but which “died” for lack of ratification by three additional states in 1982—was reintroduced in the 106th Congress in 1999.⁵ The prospect of a renewed effort to pass the ERA in Congress and to mount ratification campaigns in the fifty state legislatures raises a number of questions that I would like...

  16. Chapter 12 Sovereignty in Comparative Perspective: Constitutionalism in Britain and America
    (pp. 309-334)
    Lord Irvine of Lairg

    “The American Constitutions,” said Thomas Paine, “were to liberty, what a grammar is to language: They define its parts of speech, and practically construct them into syntax.”¹ The central role which was played by James Madison, whose memory this lecture commemorates, in the construction of the U.S. Constitution is too well known to require elaboration this evening. It suffices to note that, as one American commentator recently put it, Madison’s championing of the amendment of the Constitution was an accomplishment which “entitles him to be remembered as father of the Bill of Rights even more than as father of the...

  17. Contributors
    (pp. 335-336)
  18. Index
    (pp. 337-347)