Constitutional Choices

by Tribe, Laurence H.

• ISBN13: 9780674165397
• ISBN10: 067416539X
• Edition: Reprint
• Format: Paperback
• Copyright: 1986-10-15
• Publisher: Harvard Univ Pr

Summary

Constitutional Choices illuminates the world 0f scholarship and advocacy uniquely combined by Laurence Tribe, one of the nation's leading professors of constitutional law and most successful practitioners before the Supreme Court. In his new hook, Tribe boldly moves beyond the seemingly endless debate over which judicial approaches to enforcing the Constitution are "legitimate" and which are not. Arguing that all claims to legitimacy must remain suspect, Tribe focuses instead on the choices that must nonetheless be made in resolving actual constitutional controversies. To do so, he examines problems as diverse as interstate banking, gender discrimination, church subsidies, the constitutional amendment process, the war powers of the President, and First Amendment protection of American Nazis. Challenging the ruling premises underlying many 0f the Supreme Court's positions on fundamental issues of government authority and individual rights, Tribe shows how the Court is increasingly coming to resemble a judicial Office of Management and Budget, straining constitutional discourse through a managerial sieve and defending its constitutional rulings by "balancing'' what it counts as "costs" against what it deems benefits?' Tribe explains how the Court's "Calculus" systematically excludes basic concerns about the distribution of wealth and power and conceals fundamental choices about the American polity. Calling for a more candid confrontation of those choices and of the principles and perspectives they reflect, Tribe exposes what has gone wrong and suggests how the Court can begin to reclaim the historic role entrusted to it by the Constitution.

Table of Contents

The Nature of the Enterprise

The Futile Search for Legitimacy

The Pointless Flight from Substance

The False Equation of Proceduralism with Passivity: A Constitution We Are Amending-and Construing

Construing the Sounds of Congressional and Constitutional Silence

The Separation and Division of Powers

Silencing the Oracle: Carving Disfavored Rights out of the Jurisdiction of Federal Courts

Entrusting Non-Legislative Power to Congress

Entrusting Federal Judicial Power to Hybrid Tribunals

Choke Holds, Church Subsidies, and Nuclear Meltdowns: Problems of Standing?

The Errant Trajectory of State Sovereignty

Congressional Action as Context Rather Than Message: The Case of Interstate Bank Mergers

Guam's Vanishing Bonds: A Vignette in Taxation without Legislation

The Structure of Substantive Rights

Compensation, Contract, and Capital: Preserving the Distribution of Wealth

Speech as Power: Of Swastikas, Spending, and the Mask of "Neutral Principles"

Dismantling the House That Racism Built: Assessing "Affirmative Action"

Reorienting the Mirror of Justice: Gender, Economics, and the Illusion of the "Natural"

Refocusing the "State Action" Inquiry: Separating State Acts from State Actors

Epilogue

Notes

Index of Cases

General Index

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