LAW AND DEMOCRACY IN THE EMPIRE OF FORCE, H. Jefferson Powell, James Boyd White eds., Univ. of Michigan Press, Forthcoming
45 Pages Posted: 24 Jul 2008 Last revised: 4 Aug 2008
Date Written: July 23, 2008
The article discusses jurisprudential as opposed to purely historical and legal reasons for our failure to either recognize or discover positive rights in our constitutional tradition. By delegating constitutional law to courts, we perhaps unwittingly tie our political morality to a form of decision making - adjudication - that must and likely should police against abuses of public power, just as it polices in the civil law sphere against abuses of private power. Constitutionalism and constitutional discourse cannot, so long as it is conducted through adjudicative channels, develop a body of principles conducive to the moral deployment of power, as opposed to challenging or bucking its misuse. One cost of this, relatively unreckoned even by our contemporary critics of judicial review, is the erosion of any conception of politics (rather than law) as being a potentially ennobling human practice.
Keywords: postive rights, jurisprudence, Constitution
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