By Ken I. Kersch
This account of the advance of the preferrred Court's smooth civil liberties and rights jurisprudence argues that the courts' intended "new main issue" for "personal freedoms" (after the recent Deal) truly constructed because the outgrowth of a series of hugely specific progressive-reformist ideological currents that shaped the fashionable American nation. The book's theoretically-informed account of key paths of constitutional improvement therefore weaves American political inspiration, American political improvement, and constitutional legislation jointly.
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Extra info for Constructing civil liberties: discontinuities in the development of American constitutional law
Robinson v. Richardson, 13 Gray 456 (J. Merrick), quoted in Cooley, Constitutional Limitations, 307, n. 1. ” Cooley, Constitutional Limitations, 305. See Barron v. S. 243 (1833). xml 36 Kersch 0 521 81178 3 May 19, 2004 11:9 Reconstituting Privacy and Criminal Process Rights common street criminals, but, in their more frequent instantiations, as rights against the heavy-handed assertion of governmental regulatory and administrative authority. Of course, in comparison with contemporary practice, state regulatory regimes were not especially invasive.
This new imagining among civil rights reformers of the meaning of black people, I argue, stood in stark contrast to the reformist imagining of religious people, particularly those who continued to (atavistically) emphasize the importance of ritual, symbols, and doctrine. Whiggish narratives concerning civil rights and civil liberties in the Supreme Court’s schools cases either shed no light on – or work actively to erase – these complicated developmental processes. Toward a Genealogy of Contemporary Constitutional Morals In the pages that follow, I present three case studies tracing, in three different areas, the genealogy of contemporary constitutional morals.
Its jurisprudence is in some areas transformed by critical elections, and in others left relatively unchanged. It embraces new ideological visions, at times as wholes, but at others only in part. It takes these visions as it finds them in some cases, and actively transforms them in others. It resists change, negotiates change, and initiates change. The Court, in short, is a flashpoint or a crucible. It sits at the center of the conjunctions, multiple orders, and intercurrences that characterize the American political order, and, aware of its perpetually tenuous claim to authority, a claim based precariously on its status as a law follower rather than a law creator, labors to reconcile them plausibly in light of concrete, often crosscutting goals (and often in the absence of them).
Constructing civil liberties: discontinuities in the development of American constitutional law by Ken I. Kersch