Judgment Calls: Principle and Politics in Constitutional Law pptx

[...]... and in this book we describe and defend this middle ground Constitutional decisions can be judicial and principled (and thus firmly rooted in the rule of law rather than in politics) , as well as judicious and pragmatic (and thus range beyond the narrow confines of text and original intent) Good constitutional adjudication should be neither the mechanical application of formal rules nor the freewheeling... single nation, has not yet been denied In war, we are one people In making peace, we are one people In all commercial regulations, we are one and the same people.” In terms of these and other aspects of national unity, the federal government “alone [is] capable of controlling and managing their interests in all these respects.” In short, Marshall said, “America has chosen to be, in many respects, and. .. should make value judgments, 48 The risk of overreaching, 50 6 The Anatomy of Judgment, 53 Judicial reasoning and the common law, 54 Improving judicial decision making, 56 xiv Contents III Precedent as a Safeguard 7 Respect for Precedent, 63 Precedent and the rule of law, 64 The value of precedent, 70 Precedent and the modern constitutional order, 72 8 Explaining Precedent, 75 What kinds of precedents?... a responsible, reasoned way We think judges do fairly well on the whole; they might do a little better with some changes in legal culture and institutional processes In short, we think judges can be both guided by “the law and also active participants in molding the law The biggest barrier to accepting this view is the common assumption that law equates with logic and is therefore the opposite of... to the original “meaning” of the constitutional provision The key element is that constitutional meaning is fixed, at least where it can be ascertained, in the late eighteenth century when the original Constitution and the Bill of Rights were adopted, or in the mid-nineteenth century when the Fourteenth Amendment was adopted Those holding the opposing view are more apt to refer to the “living Constitution.”... connection to the varying perspectives and values of judges Judges do not operate in a vacuum, and their worldviews inevitably and properly—shape their rulings in hard cases But judges operate in a different world than do legislators There are both internal and external constraints on their decisions These constraints do not provide definitive answers to every case Especially in important cases, reasonable... value judgments Our argument is directed in part against those who see a stark choice between a formalistic conception of law and raw politics as the basis for judicial decisions Our approach to constitutional adjudication, then, cannot be captured in a catchword or a set of instructions We must instead describe in detail the processes by which judges should and largely do—decide constitutional cases, and. .. reassurance We therefore turn in parts III, IV, and V to the pressures that keep judges from either freely imposing their own values or deciding cases on a purely ad hoc basis We describe and defend three key safeguards against judicial lawlessness: (1) adherence to precedent, (2) process constraints, including reasoned deliberation, transparency, and incrementalism, and (3) internalized norms Although... closely related to originalism, especially in its “original meaning” form, but emphasizes the importance of the specific words used in the Constitution • Foundationalism is the view that constitutional law should rest on a single value (such as majoritarianism or protection of individual rights) or a single interpretive strategy (such as originalism or textualism) rather than involving a pluralist constellation... problem of constitutional law, although we will argue otherwise As with all our books, we could not have done it alone We thank Stephen Jordan, Andy Lewis, and Hannah Edelman for providing a variety of research assistance, and Dianne Farber and Paul Edelman for carefully reviewing the final text Janelle Steele took a pile of individual chapters in two different word processing formats and turned them into . h1" alt="" Judgment Calls This page intentionally left blank Judgment Calls Principle and Politics in Constitutional Law daniel a. farber and suzanna. Congress Cataloging -in- Publication Data Farber, Daniel A., 1950– Judgment calls : principle and politics in constitutional law / Daniel A. Farber and Suzanna