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Prominent constitutional scholar Christopher Wolfe challenges popular opinions by presenting an insightful and well-supported defense of originalist interpretations of the Constitution. He describes the traditional approach to constitutional interpretation and judicial review and then focuses his analysis on the due process clause, which has become the source of most modern constitutional law. Wolfe challenges the most influential defenders of judicial activism, including Laurence Tribe, Michael Dorf, Harry Wellington, and Mark Tushnet, and he persuasively explains the dire political consequences of taking the Constitution out of constitutional law.
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How to Read the Constitution : Originalism, Constitutional Interpretation, and Judicial Power
author
:
Wolfe, Christopher.
publisher
:
Rowman & Littlefield
isbn10 | asin
:
084768234X
print isbn13
:
9780847682348
ebook isbn13
:
9780585080888
language
:
English
subject
Constitutional law--United States, Judicial power--United States, Judicial review--United States.
publication date
:
1996
lcc
:
KF4552.W63 1996eb
ddc
:
342.73/02
subject
:
Constitutional law--United States, Judicial power--United States, Judicial review--United States.
Page iii
How to Read the Constitution
Originalism, Constitutional Interpretation, and Judicial Power
Christopher Wolfe
ROWMAN & LITTLEFIELD PUBLISHERS, INC. Lanham Boulder New York London
Page iv
ROWMAN & LITTLEFIELD PUBLISHERS, INC.
Published in the United States of America by Rowman & Littlefield Publishers, Inc. 4720 Boston Way, Lanham, Maryland 20706
3 Henrietta Street, London WC2E 8LU, England
Copyright 1996 by Rowman & Littlefield Publishers, Inc.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of the publisher.
British Cataloging in Publication Information Available
Library of Congress Cataloging-in-Publication Data
Wolfe, Christopher. How to read the constitution: orginalism, constitutional interpretation, and judicial power / by Christopher Wolfe. p. cm. Includes bibliographical references and index. 1. United StatesConstitutional lawInterpretation and construction. 2. Judicial powerUnited States. 3. Judicial reviewUnited States. I. Title. KF4552.W63 1996 342.73'02dc20 [347.3022] 96-12526 CIP
ISBN 0-8476-8234-X (cloth : alk.paper)
ISBN 0-8476-8235-8 (pbk.: alk.paper)
Printed in the United States of America
The paper used in this publication meets the minimum requirements of American National Standard for Information SciencesPermanence of Paper for Printed Library Materials, ANSI Z39.48-1984.
Page v
To my beloved Anne
Page vii
CONTENTS
Acknowledgments
ix
Introduction
xi
Part I The Founding and Constitutional Interpretation
1 How to Read and Interpret the Constitution
3
2 The Original Meaning of the Due Process Clause
27
3 Between Scylla and Charybdis: Powell and Berger on the Framers and Original Intention
43
Part II Twentieth-Century Judicial Power: Practice and Theory
4 How the Constitution Was Taken Out of Constitutional Law
85
5 The Result-Oriented Adjudicator's Guide to Constitutional Law I: Laurence Tribe and Michael Dorf
107
6 The Result-Oriented Adjudicator's Guide to Constitutional Law II: Harry Wellington
125
7 Grand Theories and Ambiguous Republican Critique: Mark Tushnet on Contemporary Constitutional Law
149
8 Constitutional Interpretation and Precedent
175
Notes
193
Index
215
About the Author
227
Page ix
ACKNOWLEDGMENTS
Permission to include previously published articles as chapters in this book is gratefully acknowledged:
Chapter 1 originally appeared in Constitutionalism in Perspective, Volume III: The United States Constitution in Twentieth Century Politics, ed. S. Thurow (Lanham, Md.: University Press of America, 1988).
Chapter 2 was published in The Bill of Rights: Original Meaning and Current Understanding, ed. E. Hickok, Jr. (Charlottesville, Va.: University Press of Virginia).
Chapter 4 was published in the Harvard Journal of Law and Public Policy 10, no. 3 (Summer 1987). Copyright 1987 by the Harvard Society for Law and Public Policy, Inc.
Chapters 5 and 6 were published originally in 70 Texas Law Review 1325 (1992). Copyright 1992 by the Texas Law Review Association. Reprinted by permission.
Chapter 7 was published in Law and Social Inquiry 15, no. 4 (Fall 1990). Copyright 1991 American Bar Foundation.
Chapter 8 was originally part of the Program in American Constitutionalism Lecture Series at Southwest Texas State University (March 1994).
Grateful acknowledgment also is owed to the Bradley Institute for Democracy and Public Values at Marquette University for the summer fellowship that made chapter 3 possible.
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