The Judiciary and American Democracy

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The Judiciary and American Democracy
Alexander Bickel, the Countermajoritarian Difficulty, and Contemporary Constitutional Theory

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Kenneth D. Ward - Editor
Cecilia R. Castillo - Editor

SUNY series in American Constitutionalism

Price: $55.00
Hardcover - 204 pages

Release Date: September 2005

ISBN10: 0-7914-6555-1
ISBN13: 978-0-7914-6555-4

Price: $29.95
Paperback - 204 pages

Release Date: June 2006

ISBN10: 0-7914-6556-X
ISBN13: 978-0-7914-6556-1

Price: $29.95
Electronic - 204 pages

Release Date: February 2012

ISBN10: N/A
ISBN13: 978-0-7914-8277-3

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Summary

Examines recent debates in constitutional theory in light of the work of Alexander Bickel.

The role courts should play in American democracy has long been contested, fueling debates among citizens who take an active interest in politics. Alexander Bickel made a significant contribution to these debates with his seminal publication, The Least Dangerous Branch, which framed the problem of defending legitimate judicial authority. This book addresses whether or not the countermajoritarian difficulty outlined in Bickel's work continues to have significance for constitutional theory almost a half-century later. The contributors illustrate how the countermajoritarian difficulty and Bickel's response to it engage prominent theories: the proceduralisms of John Hart Ely and Jeremy Waldron; the republicanisms of Bruce Ackerman and Cass Sunstein; and the originalisms of Raoul Berger, Robert Bork, and Keith Whittington. In so doing, this book provides a useful introduction to recent debates in constitutional theory and also contributes to the broader discussion about the proper role of the courts.

“As an assessment of current legal theory about the state of thought concerning the exercise of judicial review in our democratic system, this … volume is packed with very serious and important arguments.” — Law and Politics Book Review

“The book has many virtues, starting with the high quality of its individual contributions, several of which are penned by highly influential theorists in the field today. It also deftly avoids becoming bogged down in dense thickets of court cases, but it does so without sacrificing intellectual rigor … Though the book reaches no conclusion about the place of Bickel in contemporary constitutional theory, the competing opinions it advances collectively demonstrate Bickel’s continued relevance today.” — CHOICE

"The Judiciary and American Democracy succeeds at providing a wonderful set of readings that bring Bickel's work to life and that note his importance to scholarship on judicial review, constitutional interpretation, and, more broadly, the notion of separation of powers in a constitutional system. It shreds the rather simplistic notions that some people have of judicial restraint and judicial activism. This is a significant work on a true giant in the field of constitutional studies, law, and courts." — Roger E. Hartley, University of Arizona

Contributors include Stanley Brubaker, Neal Devins, David Golove, Robert F. Nagel, Terri Peretti, Christopher J. Peters, Mark Tushnet, Kenneth D. Ward, and Keith E. Whittington.

At Texas State University at San Marcos, Kenneth D. Ward is Associate Professor and Cecilia R. Castillo is Assistant Professor in the Department of Political Science. Castillo is the coeditor (with Kenneth L. Grasso) of Liberty Under Law: American Constitutionalism, Yesterday, Today, and Tomorrow.

Table of Contents

Introduction

Kenneth D. Ward

1. Principle, Prudence, and Judicial Power
Robert F. Nagel

2. The Jurisprudence of Constitutional Regimes: Alexander Bickel and Cass Sunstein
Mark Tushnet

3. Alexander Bickel and the New Judicial Minimalism
Christopher J. Peters and Neal Devins

4. Democratic Constitutionalism: The Bickel-Ackerman Dialectic
David M. Golove

5. The Countermajoritarian Difficulty: Tradition Versus Original Meaning
Stanley C. Brubaker

6. An Empirical Analysis of Alexander Bickel’s The Least Dangerous Branch
Terri Peretti

7. Bickel and the New Proceduralists
Kenneth D. Ward

8. Constitutional Theory and the Faces of Power
Keith E. Whittington

List of Contributors
Index

Related Subjects

Constitutional Studies
Public Law

44259/44260(MR/KW/MC)