Closing the Courthouse Door

How Your Constitutional Rights Became Unenforceable

Author: Erwin Chemerinsky

Publisher: Yale University Press

ISBN: 0300211589

Category: Law

Page: 280

View: 8995

A leading legal scholar explores how the constitutional right to seek justice has been restricted by the Supreme Court The Supreme Court's decisions on constitutional rights are well known and much talked about. But individuals who want to defend those rights need something else as well: access to courts that can rule on their complaints. And on matters of access, the Court's record over the past generation has been almost uniformly hostile to the enforcement of individual citizens' constitutional rights. The Court has restricted who has standing to sue, expanded the immunity of governments and government workers, limited the kinds of cases the federal courts can hear, and restricted the right of habeas corpus. Closing the Courthouse Door, by the distinguished legal scholar Erwin Chemerinsky, is the first book to show the effect of these decisions: taken together, they add up to a growing limitation on citizens' ability to defend their rights under the Constitution. Using many stories of people whose rights have been trampled yet who had no legal recourse, Chemerinsky argues that enforcing the Constitution should be the federal courts' primary purpose, and they should not be barred from considering any constitutional question.

The Conservative Assault on the Constitution

Author: Erwin Chemerinsky

Publisher: Simon and Schuster

ISBN: 9781451606355

Category: History

Page: 336

View: 7621

Over the last few decades, the Supreme Court and the federal appellate courts have undergone a dramatic shift to the right, the result of a determined effort by right-wing lawmakers and presidents to reinterpret the Constitution by reshaping the judiciary. Conservative activist justices have narrowed the scope of the Constitution, denying its protections to millions of Americans, exactly as the lawmakers who appointed and confirmed these jurists intended. Basic long-standing principles of constitutional law have been overturned by the Rehnquist and Roberts courts. As distinguished law professor and constitutional expert Erwin Chemerinsky demonstrates in this invaluable book, these changes affect the lives of every American. As a result of political pressure from conservatives and a series of Supreme Court decisions, our public schools are increasingly separate and unequal, to the great disadvantage of poor and minority students. Right-wing politicians and justices are dismantling the wall separating church and state, allowing ever greater government support for religion. With the blessing of the Supreme Court, absurdly harsh sentences are being handed down to criminal defendants, such as life sentences for shoplifting and other petty offenses. Even in death penalty cases, defendants are being denied the right to competent counsel at trial, and as a result innocent people have been convicted and sentenced to death. Right-wing politicians complain that government is too big and intrusive while at the same time they are only too happy to insert the government into the most intimate aspects of the private lives of citizens when doing so conforms to conservative morality. Conservative activist judges say that the Constitution gives people an inherent right to own firearms but not to make their own medical decisions. In some states it is easier to buy an assault rifle than to obtain an abortion. Nowhere has the conservative assault on the Constitution been more visible or more successful than in redefining the role of the president. From Richard Nixon to George W. Bush, conservatives have sought to significantly increase presidential power. The result in recent years has been unprecedented abuses, including indefinite detentions, illegal surveillance, and torture of innocent people. Finally, access to the courts is being restricted by new rulings that deny legal protections to ordinary Americans. Fewer lawsuits alleging discrimination in employment are heard; fewer people are able to sue corporations or governments for injuries they have suffered; and even when these cases do go to trial, new restrictions limit damages that plaintiffs can collect. The first step in reclaiming the protections of the Constitution, says Chemerinsky, is to recognize that right-wing justices are imposing their personal prejudices, not making neutral decisions about the scope of the Constitution, as they claim, or following the "original meaning" of the Constitution. Only then do we stand a chance of reclaiming our constitutional liberties from a rigid ideological campaign that has transformed our courts and our laws. Only then can we return to a constitutional law that advances freedom and equality.

Enhancing Government

Federalism for the 21st Century

Author: Erwin Chemerinsky

Publisher: Stanford University Press

ISBN: 0804763135

Category: Political Science

Page: 312

View: 4058

Federalism—the division of power between national and state governments—has been a divisive issue throughout American history. Conservatives argued in support of federalism and states' rights to oppose the end of slavery, the New Deal, and desegregation. In the 1990s, the Rehnquist Court used federalism to strike down numerous laws of public good, including federal statutes requiring the clean up of nuclear waste and background checks for gun ownership. Now the Roberts Court appears poised to use federalism and states' rights to limit federal power even further. In this book, Erwin Chemerinsky passionately argues for a different vision: federalism as empowerment. He analyzes and criticizes the Supreme Court's recent conservative trend, and lays out his own challenge to the Court to approach their decisions with the aim of advancing liberty and enhancing effective governance. While the traditional approach has been about limiting federal power, an alternative conception would empower every level of government to deal with social problems. In Chemerinsky's view, federal power should address national problems like environmental protection and violations of civil rights, while state power can be strengthened in areas such as consumer privacy and employee protection. The challenge for the 21st century is to reinvent American government so that it can effectively deal with enduring social ills and growing threats to personal freedom and civil liberties. Increasing the chains on government—as the Court and Congress are now doing in the name of federalism—is exactly the wrong way to enter the new century. But, an empowered federalism, as Chemerinsky shows, will profoundly alter the capabilities and promise of U.S. government and society.

Unfit for Democracy

The Roberts Court and the Breakdown of American Politics

Author: Stephen E. Gottlieb

Publisher: NYU Press

ISBN: 0814733018

Category: Law

Page: 416

View: 8881

Asked if the country was governed by a republic or a monarchy, Benjamin Franklin replied, “A republic, if you can keep it.” Since its founding, Americans have worked hard to nurture and protect their hard-won democracy. And yet few consider the role of constitutional law in America’s survival. In Unfit for Democracy, Stephen Gottlieb argues that constitutional law without a focus on the future of democratic government is incoherent—illogical and contradictory. Approaching the decisions of the Roberts Court from political science, historical, comparative, and legal perspectives, Gottlieb highlights the dangers the court presents by neglecting to interpret the law with an eye towards preserving democracy. A senior scholar of constitutional law, Gottlieb brings a pioneering will to his theoretical and comparative criticism of the Roberts Court. The Roberts Court decisions are not examined in a vacuum but instead viewed in light of constitutional politics in India, South Africa, emerging Eastern European nations, and others. While constitutional decisions abroad have contributed to both the breakdown and strengthening of democratic politics, decisions in the Roberts Court have aggravated the potential destabilizing factors in democratic governments. Ultimately, Unfit for Democracy calls for an interpretation of the Constitution that takes the future of democracy seriously. Gottlieb warns that the Roberts Court’s decisions have hurt ordinary Americans economically, politically, and in the criminal process. They have damaged the historic American melting pot, increased the risk of anti-democratic paramilitaries, and clouded the democratic future.

The Case Against the Supreme Court

Author: Erwin Chemerinsky

Publisher: Penguin Books

ISBN: 0143128000

Category: History

Page: 400

View: 8385

Both historically and in the present, the Supreme Court has largely been a failure In this devastating book, Erwin Chemerinsky—“one of the shining lights of legal academia” (The New York Times)—shows how, case by case, for over two centuries, the hallowed Court has been far more likely to uphold government abuses of power than to stop them. Drawing on a wealth of rulings, some famous, others little known, he reviews the Supreme Court's historic failures in key areas, including the refusal to protect minorities, the upholding of gender discrimination, and the neglect of the Constitution in times of crisis, from World War I through 9/11. No one is better suited to make this case than Chemerinsky. He has studied, taught, and practiced constitutional law for thirty years and has argued before the Supreme Court. With passion and eloquence, Chemerinsky advocates reforms that could make the system work better, and he challenges us to think more critically about the nature of the Court and the fallible men and women who sit on it.

Free Speech on Campus

Author: Erwin Chemerinsky,Howard Gillman

Publisher: Yale University Press

ISBN: 0300231865

Category: Political Science

Page: 216

View: 6472

Can free speech coexist with an inclusive campus environment? Hardly a week goes by without another controversy over free speech on college campuses. On one side, there are increased demands to censor hateful, disrespectful, and bullying expression and to ensure an inclusive and nondiscriminatory learning environment. On the other side are traditional free speech advocates who charge that recent demands for censorship coddle students and threaten free inquiry. In this clear and carefully reasoned book, a university chancellor and a law school dean—both constitutional scholars who teach a course in free speech to undergraduates—argue that campuses must provide supportive learning environments for an increasingly diverse student body but can never restrict the expression of ideas. This book provides the background necessary to understanding the importance of free speech on campus and offers clear prescriptions for what colleges can and can’t do when dealing with free speech controversies.

Constitutional Torts and the War on Terror

Author: James E. Pfander

Publisher: Oxford University Press

ISBN: 0190495286

Category:

Page: 288

View: 5884

Constitutional Torts and the War on Terror examines the judicial response to human rights claims arising from the Bush Administration's war on terror. Despite widespread agreement that the Administration's program of extraordinary rendition, prolonged detention, and "enhanced" interrogation was torture by another name, not a single federal appellate court has confirmed an award of damages to the program's victims. The silence of the federal courts leaves victims without redress and the constitutional limits on government action undefined. Many of the suits seeking redress have been based on the landmark 1971 Supreme Court decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. This book traces the history of common law accountability, the rise of Bivens claims, and the post-Bivens history of constitutional tort litigation. After evaluating the failure of Bivens litigation arising from the war on terror, the book considers and rejects the arguments that have been put forward to explain and justify judicial silence. The book provides the Supreme Court with the tools needed to rethink its Bivens jurisprudence. Rather than treating the overseas national security context as disabling, modern federal courts should take a page from the nineteenth century, presume the viability of tort litigation, and proceed to the merits. Only by doing so can the federal courts ensure redress for victims and prevent future Administrations from using torture as an instrument of official policy.

Sharia Tribunals, Rabbinical Courts, and Christian Panels

Religious Arbitration in America and the West

Author: Michael J. Broyde

Publisher: Oxford University Press

ISBN: 0190640308

Category: Religion

Page: 320

View: 6350

This book explores the rise of private arbitration in religious and other values-oriented communities, and it argues that secular societies should use secular legal frameworks to facilitate, enforce, and also regulate religious arbitration. It covers the history of religious arbitration; the kinds of faith-based dispute resolution models currently in use; how the law should perceive them; and what the role of religious arbitration in the United States should be. Part One examines why religious individuals and communities are increasingly turning to private faith-based dispute resolution to arbitrate their litigious disputes. It focuses on why religious communities feel disenfranchised from secular law, and particularly secular family law. Part Two looks at why American law is so comfortable with faith-based arbitration, given its penchant for enabling parties to order their relationships and resolve their disputes using norms and values that are often different from and sometimes opposed to secular standards. Part Three weighs the proper procedural, jurisdictional, and contractual limits of arbitration generally, and of religious arbitration particularly. It identifies andThis book explores the rise of private arbitration in religious and other values-oriented communities, and it argues that secular societies should use secular legal frameworks to facilitate, enforce, and also regulate religious arbitration. It covers the history of religious arbitration; the kinds of faith-based dispute resolution models currently in use; how the law should perceive them; and what the role of religious arbitration in the United States and the western world should be. Part One examines why religious individuals and communities are increasingly turning to private faith-based dispute resolution to arbitrate their litigious disputes. It focuses on why religious communities feel disenfranchised from secular law, and particularly secular family law. Part Two looks at why American law is so comfortable with faith-based arbitration, given its penchant for enabling parties to order their relationships and resolve their disputes using norms and values that are often different from and sometimes opposed to secular standards. Part Three weighs the proper procedural, jurisdictional, and contractual limits of arbitration generally, and of religious arbitration particularly. It identifies and explains the reasonable limitations on religious arbitration. Part Four examines whether secular societies should facilitate effective, legally enforceable religious dispute resolution, and it argues that religious arbitration is not only good for the religious community itself, but that having many different avenues for faith-based arbitration which are properly limited is good for any vibrant pluralistic democracy inhabited by diverse faith groups.

The Justice of Contradictions

Antonin Scalia and the Politics of Disruption

Author: Richard L. Hasen

Publisher: Yale University Press

ISBN: 0300228643

Category: Biography & Autobiography

Page: 248

View: 9891

An eye-opening look at the influential Supreme Court justice who disrupted American jurisprudence in order to delegitimize opponents and establish a conservative legal order Engaging but caustic and openly ideological, Antonin Scalia was among the most influential justices ever to serve on the United States Supreme Court. In this fascinating new book, legal scholar Richard L. Hasen assesses Scalia's complex legacy as a conservative legal thinker and disruptive public intellectual. The left saw Scalia as an unscrupulous foe who amplified his judicial role with scathing dissents and outrageous public comments. The right viewed him as a rare principled justice committed to neutral tools of constitutional and statutory interpretation. Hasen provides a more nuanced perspective, demonstrating how Scalia was crucial to reshaping jurisprudence on issues from abortion to gun rights to separation of powers. A jumble of contradictions, Scalia promised neutral tools to legitimize the Supreme Court, but his jurisprudence and confrontational style moved the Court to the right, alienated potential allies, and helped to delegitimize the institution he was trying to save.

Constitution Writing, Religion and Democracy

Author: Aslı Ü. Bâli,Hanna Lerner

Publisher: Cambridge University Press

ISBN: 131683946X

Category: Law

Page: N.A

View: 9265

What role do and should constitutions play in mitigating intense disagreements over the religious character of a state? And what kind of constitutional solutions might reconcile democracy with the type of religious demands raised in contemporary democratising or democratic states? Tensions over religion-state relations are gaining increasing salience in constitution writing and rewriting around the world. This book explores the challenge of crafting a democratic constitution under conditions of deep disagreement over a state's religious or secular identity. It draws on a broad range of relevant case studies of past and current constitutional debates in Europe, Asia, Africa and the Middle East, and offers valuable lessons for societies soon to embark on constitution drafting or amendment processes where religion is an issue of contention.

The Nature of Legal Interpretation

What Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy

Author: Brian G. Slocum

Publisher: University of Chicago Press

ISBN: 022644516X

Category: Law

Page: 288

View: 2081

Language shapes and reflects how we think about the world. It engages and intrigues us. Our everyday use of language is quite effortless—we are all experts on our native tongues. Despite this, issues of language and meaning have long flummoxed the judges on whom we depend for the interpretation of our most fundamental legal texts. Should a judge feel confident in defining common words in the texts without the aid of a linguist? How is the meaning communicated by the text determined? Should the communicative meaning of texts be decisive, or at least influential? To fully engage and probe these questions of interpretation, this volume draws upon a variety of experts from several fields, who collectively examine the interpretation of legal texts. In The Nature of Legal Interpretation, the contributors argue that the meaning of language is crucial to the interpretation of legal texts, such as statutes, constitutions, and contracts. Accordingly, expert analysis of language from linguists, philosophers, and legal scholars should influence how courts interpret legal texts. Offering insightful new interdisciplinary perspectives on originalism and legal interpretation, these essays put forth a significant and provocative discussion of how best to characterize the nature of language in legal texts.

International Law and World Order

A Critique of Contemporary Approaches

Author: B. S. Chimni

Publisher: Cambridge University Press

ISBN: 1108210287

Category: Law

Page: N.A

View: 7896

In International Law and World Order, B. S. Chimni articulates an integrated Marxist approach to international law (IMAIL), combining the insights of Marxism, socialist feminism, and postcolonial theory. The book uses IMAIL to systematically and critically examine the most influential contemporary theories of international law, including new, feminist, realist, and policy-oriented approaches. In doing so, it discusses a range of themes relating to the history, structure, and process of international law. The book also considers crucial world order issues and problems that the international legal process has to contend with, including the welfare of weak groups and nations, the ecological crisis, and the role of human rights. This extensively revised second edition provides an invaluable, in-depth and updated review of the key literature and scholarship within this field of study. It will be of particular interest to students and scholars of international law, international relations, international politics, and global studies.

Supremely Partisan

How Raw Politics Tips the Scales in the United States Supreme Court

Author: James D. Zirin

Publisher: Rowman & Littlefield

ISBN: 1442266376

Category: Political Science

Page: 312

View: 2586

On the eve of a presidential election that may determine the makeup of Supreme Court justices for decades to come, prominent attorney James D. Zirin argues that the Court has become increasingly partisan, rapidly making policy choices right and left on bases that have nothing to do with law or the Constitution. Zirin explains how we arrived at the present situation and looks at the current divide through its leading partisans, Justices Ruth Bader Ginsburg and Sonia Sotomayor on the left and Antonin Scalia and Clarence Thomas on the right. He also examines four of the Court’s most controversial recent decisions – Hobby Lobby, Obamacare, gay marriage, and capital punishment – arguing that these politicized decisions threaten to undermine public confidence in the Supreme Court.

US Supreme Court Opinions and their Audiences

Author: Ryan C. Black,Ryan J. Owens,Justin Wedeking,Patrick C. Wohlfarth

Publisher: Cambridge University Press

ISBN: 1316682056

Category: Law

Page: 185

View: 3694

This book is the first study specifically to investigate the extent to which US Supreme Court justices alter the clarity of their opinions based on expected reactions from their audiences. The authors examine this dynamic by creating a unique measure of opinion clarity and then testing whether the Court writes clearer opinions when it faces ideologically hostile and ideologically scattered lower federal courts; when it decides cases involving poorly performing federal agencies; when it decides cases involving states with less professionalized legislatures and governors; and when it rules against public opinion. The data shows the Court writes clearer opinions in every one of these contexts, and demonstrates that actors are more likely to comply with clearer Court opinions.

The Chief Justice

Appointment and Influence

Author: David J Danelski,Artemus Ward

Publisher: University of Michigan Press

ISBN: 0472119915

Category: Law

Page: 464

View: 2083

Scholars use the most advanced methods in judicial studies to examine the role of Chief Justice of the U.S. Supreme Court

The Federal Courts

An Essential History

Author: Peter Charles Hoffer,N. E. H. Hull

Publisher: Oxford University Press

ISBN: 0199387907

Category: Courts

Page: 560

View: 4987

There are moments in American history when all eyes are focused on a federal court: when its bench speaks for millions of Americans, and when its decision changes the course of history. More often, the story of the federal judiciary is simply a tale of hard work: of finding order in the chaotic system of state and federal law, local custom, and contentious lawyering. The Federal Courts is a story of all of these courts and the judges and justices who served on them, of the case law they made, and of the acts of Congress and the administrative organs that shaped the courts. But, even more importantly, this is a story of the courts' development and their vital part in America's history. Peter Charles Hoffer, Williamjames Hull Hoffer, and N. E. H. Hull's retelling of that history is framed the three key features that shape the federal courts' narrative: the separation of powers; the federal system, in which both the national and state governments are sovereign; and the widest circle: the democratic-republican framework of American self-government. The federal judiciary is not elective and its principal judges serve during good behavior rather than at the pleasure of Congress, the President, or the electorate. But the independence that lifetime tenure theoretically confers did not and does not isolate the judiciary from political currents, partisan quarrels, and public opinion. Many vital political issues came to the federal courts, and the courts' decisions in turn shaped American politics. The federal courts, while the least democratic branch in theory, have proved in some ways and at various times to be the most democratic: open to ordinary people seeking redress, for example. Litigation in the federal courts reflects the changing aspirations and values of America's many peoples. The Federal Courts is an essential account of the branch that provides what Massachusetts Supreme Judicial Court Judge Oliver Wendell Homes Jr. called "a magic mirror, wherein we see reflected our own lives."

The Alien and Sedition Acts of 1798

Testing the Constitution

Author: Terri Diane Halperin

Publisher: JHU Press

ISBN: 142141970X

Category: History

Page: 168

View: 4883

In May 1798, after Congress released the XYZ Affair dispatches to the public, a raucous crowd took to the streets of Philadelphia. Some gathered to pledge their support for the government of President John Adams, others to express their disdain for his policies. Violence, both physical and political, threatened the safety of the city and the Union itself. To combat the chaos and protect the nation from both external and internal threats, the Federalists swiftly enacted the Alien and Sedition Acts. Oppressive pieces of legislation aimed at separating so-called genuine patriots from objects of suspicion, these acts sought to restrict political speech, whether spoken or written, soberly planned or drunkenly off-the-cuff. Little more than twenty years after Americans declared independence and less than ten since they ratified both a new constitution and a bill of rights, the acts gravely limited some of the very rights those bold documents had promised to protect. In The Alien and Sedition Acts of 1798, Terri Diane Halperin discusses the passage of these laws and the furor over them, as well as the difficulties of enforcement. She describes in vivid detail the heated debates and tempestuous altercations that erupted between partisan opponents: one man pulled a gun on a supporter of the act in a churchyard; congressmen were threatened with arrest for expressing their opinions; and printers were viciously beaten for distributing suspect material. She also introduces readers to the fraught political divisions of the late 1790s, explores the effect of immigration on the new republic, and reveals the dangers of partisan excess throughout history. Touching on the major sedition trials while expanding the discussion beyond the usual focus on freedom of speech and the press to include the treatment of immigrants, Halperin’s book provides a window through which readers can explore the meaning of freedom of speech, immigration, citizenship, the public sphere, the Constitution, and the Union.

The Erosion of Tribal Power

The Supreme Court's Silent Revolution

Author: Dewi I. Ball

Publisher: N.A

ISBN: 9780806155654

Category: History

Page: 400

View: 6699

For the past 180 years, the inherent power of indigenous tribes to govern themselves has been a central tenet of federal Indian law. Despite the U.S. Supreme Court's repeated confirmation of Native sovereignty since the early 1830s, it has, in the past half-century, incrementally curtailed the power of tribes to govern non-Indians on Indian reservations. The result, Dewi Ioan Ball argues, has been a "silent revolution," mounted by particular justices so gradually and quietly that the significance of the Court's rulings has largely evaded public scrutiny. Ball begins his examination of the erosion of tribal sovereignty by reviewing the so-called Marshall trilogy, the three cases that established two fundamental principles: tribal sovereignty and the power of Congress to protect Indian tribes from the encroachment of state law. Neither the Supreme Court nor Congress has remained faithful to these principles, Ball shows. Beginning with Williams v. Lee, a 1959 case that highlighted the tenuous position of Native legal authority over reservation lands and their residents, Ball analyzes multiple key cases, demonstrating how the Supreme Court's decisions weakened the criminal, civil, and taxation authority of tribal nations. During an era when many tribes were strengthening their economies and preserving their cultural identities, the high court was undermining sovereignty. In Atkinson Trading Co. v. Shirley (2001) and Nevada v. Hicks (2001), for example, the Court all but obliterated tribal authority over non-Indians on Native land. By drawing on the private papers of Chief Justice Earl Warren and Justices Harry A. Blackmun, William J. Brennan, Thurgood Marshall, William O. Douglas, Lewis F. Powell Jr., and Hugo L. Black, Ball offers crucial insight into federal Indian law from the perspective of the justices themselves. The Erosion of Tribal Power shines much-needed light on crucial changes to federal Indian law between 1959 and 2001 and discusses how tribes have dealt with the political and economic consequences of the Court's decisions.

Human Rights

An Interdisciplinary Approach

Author: Michael Freeman

Publisher: Polity

ISBN: 0745639666

Category: Political Science

Page: 241

View: 1040

Introducing readers to the theory and practice of human rights, this text emphasises how the experiences of the victims of human rights violations are related to legal, philosophical and social-scientific approaches to human rights.

Red, White, and Blue

A Critical Analysis of Constitutional Law

Author: Mark V. Tushnet

Publisher: N.A

ISBN: 9780700621026

Category: Law

Page: 376

View: 1154

Examines the major approaches to constitutional interpretation developed in the late twentieth century. Though interpretive theories purport to constrain judges in a disciplined way, none actually can do so. An Afterword brings the story up to the present, without altering its conclusion, that "Critique is all there is."