By Philip Bobbitt
The following, Philip Bobbitt stories the root for the legitimacy of judicial evaluation via reading six forms of constitutional argument--historical, textual, structural, prudential doctrinal, and ethical--through the weird approach to contrasting sketches of favorite criminal figures responding to the constitutional crises in their day. Examines the attribute sorts of constitutional argument during which judicial evaluation is Read more...
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Extra info for Constitutional Fate : Theory of the Constitution
Sample text
CBS New s is the interlo cutor (th e las t tim e a sittin g Justice ha d appeare d i n hi s study for a prime-time broadcast ha d bee n th e ninetiet h birthda y ra dio greeting s by Holmes in 1931) . The CBS reporter asks what reason Blac k ha s fo r arguin g tha t ther e ar e absolut e prohibi tions on government . Blac k replies , Well, I'l l read yo u th e par t o f th e firs t amendmen t that caused me t o say there are absolute s in our Bil l of Rights . I did no t say that ou r entir e Bil l o f Right s is a n absolute .
W e should b e limite d because , a s Story pu t it , "Constitutions . . ar e instrument s o f a practica l nature , founded o n th e commo n busines s o f huma n life , adapte d t o 25 26 CONSTITUTIONA L FAT E common wants , designed fo r commo n use , and fitte d fo r common understanding. Th e peopl e mak e them; the people adop t them; th e peopl e mus t b e supposed t o read the m . . ; and cannot b e presume d t o admi t i n the m an y recondit e mean ing . " 2 Historical argument s dra w legitimac y fro m th e socia l con tract negotiate d fro m a n origina l position , textua l argument s are sometime s mistaken for similar contractual arguments with the paro l evidenc e rul e strictl y applied.
The rule of law. . Only opinions whic h ar e grounde d i n reason" ca n be applied b y lower courts. Furthermore , onl y suc h opinions wil l win popula r acceptance . H e remind s us that the Cour t does no t in the en d hav e the powe r either in theory or i n practice t o ra m it s own persona l preference s dow n other people' s throats. Thus, the Cour t is predestined i n the lon g run no t only by the thrillin g tradition of Anglo-American law but als o by th e hard fact s o f it s positio n i n th e structur e of America n institutions to be a voice of reason, charged wit h th e creative function of discernin g afresh an d o f articulating and developin g impersonal and durabl e principles of constitutional law.