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Thomas R. Pope - Social Contract Theory in American Jurisprudence: Too Much Liberty and Too Much Authority

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Thomas R. Pope Social Contract Theory in American Jurisprudence: Too Much Liberty and Too Much Authority
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Despite decades of attempts and the best intentions of its members, the United States Supreme Court has failed to develop a coherent jurisprudence regarding the states proper relationship to the individual. Without some objective standard upon which to ground jurisprudence, decisions have moved along a spectrum between freedom and authority and back again, affecting issues as diverse as individual contractual liberties and the right to privacy.Social Contract Theory in American Jurisprudence seeks to reintroduce the lessons of modern political philosophy to offer a solution for this variable application of legal principle and to lay the groundwork for a jurisprudence consistent in both theory and practice. Thomas R. Popes argument examines two exemplary court cases, Lochner v. New York and West Coast Hotel v. Parrish, and demonstrates how the results of these cases failed to achieve the necessary balance of liberty and the public good because they considered the matter in terms of a dichotomy. Pope explores our constitutions roots in social contract theory, looking particularly to the ideas of Thomas Hobbes for a jurisprudence that is consistent with the language and tradition of the Constitution, and that is also more effectually viable than existing alternatives. Pope concludes with an examination of recent cases before the Court, grounding his observations firmly within the developments of ongoing negotiation of jurisprudence.Addressing the current debate between individual liberty and government responsibility within the context of contemporary jurisprudence, Pope considers the implications of a Hobbesian founding for modern policy. This book will be particularly relevant to scholars of Constitutional Law, the American Founding, and Modern Political Theory.

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Social Contract Theory in American Jurisprudence
Pope breathes new life into the old debate in constitutional law between defenders of liberty and defenders of the interest of the community. He shows the futility of the unqualified acceptance of either alternative as a consistent guide to constitutional adjudication, and returns to the roots of modernity to explain how Thomas Hobbes brought these two principles together to provide a solid foundation for modern liberal politics. Both political theorists and constitutional scholars have much to learn from this subtle and thoughtful analysis.
David K. Nichols, Baylor University
A fascinating rumination on the relationship between individual liberty and the government's police power to serve the common good that will challenge readers of all political persuasions to reconsider cherished nostrums.
David E. Bernstein, George Mason University School of Law
Despite decades of attempts and the best intentions of its members, the U.S. Supreme Court has failed to develop a coherent jurisprudence regarding the state's proper relationship to the individual. Without some objective standard on which to ground jurisprudence, decisions have moved along a spectrum between freedom and authority and back again, affecting issues as diverse as individual contractual liberties and the right to privacy.
Social Contract Theory in American Jurisprudence seeks to reintroduce the lessons of modern political philosophy to offer a solution for this variable application of legal principle and to lay the groundwork for a jurisprudence consistent in both theory and practice. Thomas R. Pope's argument examines two exemplary court cases, Lochner v. New York and West Coast Hotel Co. v. Parrish, and demonstrates how the results of these cases failed to achieve the necessary balance of liberty and the public good because they considered the matter in terms of a dichotomy. Pope explores the Constitution's roots in social contract theory, looking particularly to the ideas of Thomas Hobbes for a jurisprudence that is consistent with the language and tradition of the Constitution, and that is also more effectually viable than existing alternatives. Pope concludes with an examination of recent cases before the Court, grounding his observations firmly within the developments of ongoing negotiation of jurisprudence.
Addressing the current debate between individual liberty and government responsibility within the context of contemporary jurisprudence, Pope considers the implications of a Hobbesian founding for modern policy. This book will be particularly relevant to scholars of constitutional law, the American founding, and modern political theory.
Thomas R. Pope is an Assistant Professor of Political Science at Lee University.
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Social Contract Theory in American Jurisprudence
Too Much Liberty and Too Much Authority
Thomas R. Pope
Social Contract Theory in American Jurisprudence
Too Much Liberty and Too Much Authority
Thomas R. Pope
Social Contract Theory in American Jurisprudence Too Much Liberty and Too Much Authority - image 1
First published 2013
by Routledge
711 Third Avenue, New York, NY 10017
Simultaneously published in the UK
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
Routledge is an imprint of the Taylor & Francis Group, an informa business
2013 Taylor & Francis
The right of Thomas R. Pope to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.
Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe.
Library of Congress Cataloging-in-Publication Data
Pope, Thomas R.,
Social contract theory in American jurisprudence: too much liberty and too much authority / edited by Thomas R. Pope.
pages cm.
Includes bibliographical references.
1. LawUnited StatesPhilosophy. 2. LawPhilosophy.
3. Social contract. 4. State, The. 5. Hobbes, Thomas, 1588
1679. 6. Lochner, JosephTrials, litigation, etc. 7. New York
(State)Trials, litigation, etc. I. Title.
KF380.P66 2013
342.7308dc23
2013000918
ISBN: 978-0-415-82434-7 (hbk)
ISBN: 978-0-203-54564-5 (ebk)
Typeset in Sabon
by Apex CoVantage, LLC
For my wife and her unending patience
Contents
There often arises a great disparity between the state's dual obligation to the public good and individual liberty. Modern liberal society (also known as the West) anticipates and insists on a certain degree of selfishness in citizens, channeling their interest to serve the public good. If selfish individuals cannot be trusted to work toward the best interest of society, then it is the duty of government to restrain their freedom and direct their activity to the common good.
When the principles of laissez-faire run amok, there is a temptation to substitute for the invisible hand the guiding arm of a paternal regime.
All of this constructs a scenario much like that experienced during the early twentieth century, a fact not overlooked by recent political commentators. As the economy continues its steady descent into recession, politicians and His direct confrontation with these issues suggests an awareness of their greater philosophical challenges and reflects an attempt to reconcile the competing demands of order and liberty. Nevertheless, the policies of his administration, thus far weighing heavily on the side of government regulation, run the risk of undermining this rhetorical moderation. As a prime example, the most notable product of his administration to datethe health care reform legislation of 2010was designed largely with a view to protect America's underprivileged. And yet, even today, its constitutionality is being challenged in the Supreme Court on the grounds of overreaching the federal government's enumerated powers.
We see a rehashing of the same themes of liberty and authority expressed in two seminal Court cases: Lochner v. New York and West Coast Hotel Co. v. Parrish.supersedes even moderate liberty interests. Both approaches have proved to be paradigmatic, and both fail to achieve the necessary balance of liberty and the public good because they consider the matter as a dichotomy, rather than perceiving each as fundamental to the other.
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