Suchergebnisse

A second death of substantive due process? Our practice of substantive due process ; The coherence and structure of substantive due process ; The rational continuum of ordered liberty -- Substantive due process does not "effectively decree the end of morals legislation". Is substantive due process on a slippery slope to "the end of all morals legislation"? ; Is moral disapproval enough to justify traditional morals legislation -- Substantive due process does not enact a utopian economic or moral theory. The ghost of Lochner v. New York ; Does substantive due process enact Mill's On Liberty? -- Conflicts between liberty and equality. The grounds for protecting basic liberties: liberty together with equality ; Accommodating gay and lesbian rights and religious liberty -- The future. The future of substantive due process.

In this monograph, James E. Fleming argues that fidelity in interpreting the US Constitution as written requires a moral reading or philosophic approach, and that fidelity commits to honouring aspirational principles, not following the relatively specific original meanings (or original expected applications) of the founders

"Throughout the history of moral, political, and legal philosophy, many have portrayed passions and emotions as being opposed to reason and good judgment. At the same time, others have defended passions and emotions as tempering reason and enriching judgment, and there is mounting empirical evidence linking emotions to moral judgment. In Passions and Emotions, a group of prominent scholars in philosophy, political science, and law explore three clusters of issues: "Passion & Impartiality: Passions & Emotions in Moral Judgment"; "Passion & Motivation: Passions & Emotions in Democratic Politics"; and "Passion & Dispassion: Passions & Emotions in Legal Interpretation." This timely, interdisciplinary volume examines many of the theoretical and practical legal, political, and moral issues raised by such questions"--

Throughout the history of moral, political, and legal philosophy, many have portrayed passions and emotions as being opposed to reason and good judgment. At the same time, others have defended passions and emotions as tempering reason and enriching judgment, and there is mounting empirical evidence linking emotions to moral judgment. In Passions and Emotions, a group of prominent scholars in philosophy, political science, and law explore three clusters of issues: "Passion & Impartiality: Passions & Emotions in Moral Judgment"; "Passion & Motivation: Passions & Emotions in Democratic Politics

Frontmatter -- CONTENTS -- PREFACE -- CONTRIBUTORS -- 1. THE RULE OF LAW AND THE IMPORTANCE OF PROCEDURE -- 2. THE LIMITS OF PROCESS -- 3. A SUBSTANTIVE CONCEPTION OF THE RULE OF LAW: NONARBITRARY TREATMENT AND THE LIMITS OF PROCEDURE -- 4. FOUR PUZZLES ABOUT THE RULE OF LAW: WHY, WHAT, WHERE? AND WHO CARES? -- 5. SEPARATION OF POWERS AND THE NATIONAL SECURITY STATE -- 6. JUDICIAL OVERSIGHT, JUSTICE, AND EXECUTIVE DISCRETION BOUNDED BY LAW -- 7. THE INSTABILITY OF "EXECUTIVE DISCRETION" -- 8 .CONSTITUTIONAL THEORY, THE UNITARY EXECUTIVE, AND THE RULE OF LAW -- 9. JUSTICE ON THE GROUND? INTERNATIONAL CRIMINAL COURTS AND DOMESTIC RULE OF LAW BUILDING IN CONFLICT-AFFECTED SOCIETIES -- 10. IN DEFENSE OF IMPERIALISM? THE RULE OF LAW AND THE STATE-BUILDING PROJECT -- 12. MIGHT STILL DISTORTS RIGHT: PERILS OF THE RULE OF LAW PROJECT -- INDEX

"The rule of law has been celebrated as 'an unqualified human good, ' yet there is considerable disagreement about what the ideal of the rule of law requires. When people clamor for the preservation or extension of the rule of law, are they advocating a substantive conception of the rule of law respecting private property and promoting liberty, a formal conception emphasizing an 'inner morality of law, ' or a procedural conception stressing the right to be heard by an impartial tribunal and to make arguments about what the law is? When are exertions of executive power 'outside the law' justified on the ground that they may be necessary to maintain or restore the conditions for the rule of law in emergency circumstances, such as defending against terrorist attacks? In Getting to the Rule of Law a group of contributors from a variety of disciplines address many of the theoretical legal, political, and moral issues raised by such questions and examine practical applications 'on the ground' in the United States and around the world. This timely, interdisciplinary volume examines the ideal of the rule of law, questions when, if ever, executive power 'outside the law' is justified to maintain or restore the rule of law, and explores the prospects for and perils of building the rule of law after military interventions."--Publisher's description

In Democratic Rights: The Substance of Self-Government, Corey Brettschneider develops an attractive and powerful conception of self-government – the value theory of democracy – that encompasses both substantive rights like privacy and procedural rights. Although he argues, following Habermas and Rawls, that substantive rights and procedural rights are "co-original," the structure of his theory may lead him to reduce the former into the latter and not fully to account for personal self-government in his conception of democratic self-government. The wages of his democratic justifications for substantive rights may be a surprising anxiety or unwarranted tension concerning judicial review protecting such rights.

Can theories of evolution explain the development of our capacity for moral judgment and the content of morality itself? If bad behavior punished by the criminal law is attributable to physical causes, rather than being intentional or voluntary as traditionally assumed, what are the implications for rethinking the criminal justice system? Is evolutionary theory and "nature talk," at least as practiced to date, inherently conservative and resistant to progressive and feminist proposals for social changes to counter subordination and secure equality? In Evolution and Morality , a group of cont

Intro -- Contents -- Preface -- Part I -- 1. The Presuppositions of Constitutional Interpretation -- 2. The Principal Questions of Constitutional Interpretation -- 3. The Principal Features of the American Constitutional Order: The Positive Constitutionalism of The Federalist -- Part II -- 4. Approaches to Constitutional Interpretation -- 5. Textualism and Consensualism -- 6. Narrow Originalism/Intentionalism -- 7. Broad Originalism -- 8. Structuralism -- 9. Doctrinalism and Minimalism -- 10. The Philosophic Approach -- 11. Pragmatism -- Epilogue: A Fusion of Approaches to Constitutional Interpretation -- Index -- A -- B -- C -- D -- E -- F -- G -- H -- I -- J -- K -- L -- M -- N -- O -- P -- R -- S -- T -- U -- V -- W -- Y -- Z.

Frontmatter -- Contents -- Preface -- Contributors -- 1. Defending dual federalism: A self-defeating act -- 2. Defending dual federalism: A bad idea, but not self-defeating -- 3. The puzzling persistence of dual federalism -- 4. Foot voting, federalism, and political freedom -- 5. Federalism and subsidiarity: perspectives from u.s. constitutional law -- 6. Subsidiarity, the judicial role, and the warren court's contribution to the revival of state government -- 7. Competing conceptions of subsidiarity -- 8. Subsidiarity and robustness: building the adaptive efficiency of federal systems -- 9. Cities and federalism -- 10. Cities, subsidiarity, and federalism -- 11. The constitutional entrenchment of federalism -- 12. Federalism(s)' forms and norms: contesting rights, de-essentializing jurisdictional divides, and temporizing accommodations -- Index

Intro -- Contents -- 1. Rights, Responsibilities, and Virtues -- 2. Rights and Irresponsibility -- 3. Taking Responsibilities as well as Rights Seriously -- 4. Civil Society's Role in Cultivating the "Seedbeds of Virtue" -- 5. Government's Role in Promoting Civic Virtues -- 6. Conflicts between Liberty and Equality -- 7. Autonomy versus Moral Goods -- 8. Minimalism versus Perfectionism -- 9. The Myth of Strict Scrutiny for Fundamental Rights -- Epilogue: Pursuing Ordered Liberty -- Notes -- Acknowledgments -- Index.