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Revolution by Judiciary
By
Jed Rubenfeld
Description
Although constitutional law is supposed
to be fixed and enduring, its central narrative in the twentieth
century has been one of radical reinterpretation--Brown v. Board of
Education, Roe v. Wade, Bush v. Gore. What, if anything, justifies
such radical reinterpretation? How does it work doctrinally? What, if
anything, structures it or limits it?
Jed Rubenfeld finds a pattern in
American constitutional interpretation that answers these questions
convincingly. He posits two different understandings of how
constitutional rights would apply or not apply to particular
legislation. One is that a right would be violated if certain laws
were passed. The other is that a right would not be violated. He
calls the former \"Application Understandings\" and the
latter \"No-Application Understandings.\" He finds that
constitutional law has almost always adhered to all of the original
Application Understandings, but where it has departed from history,
as it did in the Brown decision, it has departed from No-Application
Understandings. Specifically, the Fourteenth Amendment did not
prohibit racial segregation, so Rubenfeld argues that the Supreme
Court had no problem reinterpreting it to prohibit it. It was a
No-Application Understanding.
This is a powerful argument that
challenges current theories of constitutional interpretation from
Bork to Dworkin. It rejects simplistic originalism, but restores
historicity to constitutional theorizing.
Contents
Acknowledgments
I. THE STRUCTURE OF
CONSTITUTIONAL LAW
1. Introduction: Radical
Reinterpretation
2. Rights
3. Powers
II. COMMITMENT, INTENTION, AND
SELF-GOVERNMENT
4. The Paradox of Commitment
5. Commitments and Original
Understandings
6. Two Objections
III. CONSTITUTIONAL LAW TODAY
7. Has Constitutional Law Stopped
Making Sense?
8. The Anti-Anti-Discrimination
Agenda
9. Sex, Commerce, Preferences
Notes
Index
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