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Constitutional Structure and Purposes Critical Commentary
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Michael Conant
ISBN: 0-313-31669-4
ISBN-13: 978-0-313-31669-2
184 pages
Praeger Publishers
Publication: 11/30/2000
List Price: $115.00 (UK Sterling Price: £79.95)
Availability: In Stock
Media Type: Hardcover
Trim Size: 6 1/8 x 9 1/4
Subjects:
Description: Legal uncertainty is particularly high in constitutional law, where the Supreme Court may overrule earlier decisions as not conforming to the Constitution. This critical study of constitutional decision-making in the Supreme Court emphasizes the failures of the justices to consider constitutional structure and the original meaning of language in context. Conant criticizes the Supreme Court's opinions supporting racial segregation and the perpetuation of a caste system until the final overruling in Brown v. Board of Education; the Court's antitrust exemption of professional baseball; and the recent finding that physical desecration of the flag is protected under freedom of speech.

This study challenges the view of the liberal scholars who argue that the Supreme Court must redefine the Constitution to keep up with the changing times, because this view gives approval for judicial usurpation of the amending power. It also rejects the view of conservative scholars, who contend that the Supreme Court must search for the intent of the framers of the Constitution, on the grounds that subjective intent is impossible to research. There was no verbatim reporter at the 1787 convention, and no such notes were available to the ratifying conventions in the states that rendered the proposed constitution into law in 1789. Following the methodology of Justice Holmes, Conant focuses this work on constitutional purposes and the meaning of language within its total social context at the time of its adoption.
Table of Contents:
  • Introduction
    Constitutional Structure and Purposes: Epistemological Critique of Judicial Reasoning
    The Slave Trade at the Constitutional Convention: Commerce Clause and the Limited Political Horizon of Delegates
    Compromise Opinions on the Equal Protection Clause: Racial Caste System in Plessy and Brown Cases
    Misconstruction of the Commerce Clause and the Sherman Act: The Baseball Antitrust Cases, Federalism Under the Commerce Clause: United States v. Lopez
    State Police Power Limited by The Bill of Rights: The Flag Salute Cases
    Defining Freedom of Speech: The Flag Desecration Cases
    Index
About the Author: MICHAEL CONANT is Professor Emeritus of Business Law in the graduate school at the University of California, Berkeley./e
LCC Class: 347
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