The Constitutional Divide: The Private and Public Sectors in American LawUniv of South Carolina Press, 1997 - 224 pages Annotation. William P. Kreml contends that the sectoral divide - the division between the public and private sectors and not the divisions among America's political institutions are traditionally understood - makes up the historically and ideologically most significant separation within American law. He offers an original reinterpretation of American Constitutional development, tracing the evolution of the private and public sectors through the Magna Carta, Edward I, Coke, Blackstone, and others and assessing the impact of the English sectoral divide on the U.S. Constitution. Kreml writes that the evolution of the ideological argument between English common law and English state law had a direct impact on the development of the private and public jurisdictions within the pre-Constitutional American states as well as on the Constitutional argument between the Federalists and the Anti-Federalists. The same sectoral differentiation, Kreml maintains, underpinned the highly distinctive ideological perspectives ofthe Constitution and the Bill of Rights. Kreml then traces the sectoral divide through U.S. legal history, arguing, for example, that Roe v. Wade was not a privacy case as is commonly believed and that the open housing case of Shelley v. Kraemer was not a public-sector-enhancing case but rather a victory for private common law principles. Kreml employs a sectoral analysis to what he believes to be the Burger Court's incorrect decision in the campaign finance case of Buckley v. Valeo, and he offers an original reinterpretation of the judicial activism of the Warren Court and the differentiation between early Constitutional and Warren-era forms of political majoritarianism. |
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Contents
The English Contribution | 10 |
The American Experience | 31 |
The Interpretive Period | 55 |
Dissolution | 81 |
The Third Activist Period | 107 |
The Warren Court | 121 |
Apportionment and Womens Rights | 143 |
Warren Critiqued | 156 |
Burger Critiqued | 182 |
Common terms and phrases
accused activist Alexander Bickel Amendment American analytic Anglo-American Anti-Federalists argued argument Baker Bickel Bill of Rights Blackstone Blackstone's Boorstin Buckley Burger Court campaign century chapter Charles River Bridge Chief Justice citizenry citizens Civil cognitive form Coke Coke's common law concerning Congress Constitution's context course deal decision democracy democratic Dred Scott Earl Warren early economic Edward English ernment favor federal government Federalist Federalist Papers feudal framers governmental Holmes Ibid ideological impact important increasingly institutional issue judicial activism jurisdiction jurisprudence jurisprudential law's legislative legislatures Madison Magna Carta majoritarian majority Marshall Marshall's ment mercantile mercantilist opinion period perspective political and legal position post-Warren private and public private interests private law private sector private-to-public balance private-to-public sectoral protection provisions public sector racial ratified reason regard ruling sense seven articles Shelley South Southern statute substantive Supreme Court synthetic Taney tion tutional U.S. Constitutional United University Press Warren Court York
References to this book
The Constitutional Convention of 1787: A Comprehensive Encyclopedia of ... John R. Vile No preview available - 2005 |