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Art of Judging - Volume 8 (Paperback)
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Art of Judging - Volume 8 (Paperback)
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The single most important issue in American constitutional law is
the role the Supreme Court should play in interpretation of the
constitution. This issue has been a source of controversy since at
least 1803, when Chief Justice John Marshall proclaimed that the
Supreme Court could declare acts of Congress unconstitutional. But
public attention has been refocused by the recent debate between
Attorney General Edwin Meese and Supreme Court Justice William
Brennan. The Attorney General admonished the Justices to confine
themselves to strict construction of the Constitution-to apply the
Constitution as the framers intended. Justice Brennan rejected this
as errant and arrogant because the framers had certainly not
thought about the specific problems facing the country today.
In "The Art of Judging," Professor James A. Bond characterizes
this controversy as a debate between advocates of two different
styles of judging. Judicial "craftsmen" look backward for guidance:
to the text of the Constitution, the original understanding of that
text, and the historical experiences of the American people.
Judicial " statesmen" look forward for guidance: to moral and
political ideals and notions of the public good. And only the
former style, Professor Bond argues, can preserve both the rule of
law and constitution in a democracy. Judicial statesmanship
undermines the power of the majority to make the law and thereby
lessens people's willingness to accept constitutional limitations
on the majority rule that make it palatable to those in the
minority. But judicial craftsmanship respects the authority of the
people at the same time that it enforces constitutional limitations
on that authority.
" James A. Bond" is the Dean of the University of Puget Sound
School of Law, and has taught at Wake Forest University and
Washington and Lee University. From his youthful involvement in the
civil rights movement to his long tenure as President of the Fund
for the Protection of Individual Rights, he has been involved in
helping persons struggling against the overwhelming power of the
state. As a student and scholar of constitutional law, he has
focused primarily on how the Supreme Court should exercise its
mandate to protect the individual from the state.
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