Political Thought and the American Judiciary

Front Cover
H. L. Pohlman
Univ of Massachusetts Press, 1993 - Law - 326 pages

A collection of readings from over two hundred years of judicial decision-making, this volume explores the changing meaning of the central tenets of American political culture. Organized into chapters on natural law, freedom, democracy, equality, and privacy, the selections address issues ranging from the limits of free speech to the right to die with dignity, from affirmative action to abortion. Together the judges' opinions reflect not only the influence of abstract ideas and ideals on the judiciary, but also the evolution of American political values.H. L. Pohlman introduces each chapter with an essay that traces the genealogy of the principle in question from antiquity to modern times. He also provides headnotes to each chapter subsection explaining the key facts of specific cases. For the most part, however, Pohlman allows the judges to speak for themselves.The opinions included in the book are drawn from state and lower courts as well as from the records of the United States Supreme Court. As a result, while some of the excerpts, such as Chief Justice Earl Warren's majority opinion in Brown v. Board of Education, are well known, others are less familiar. Whatever the source, each provides a unique perspective on the moral and political ambiguities that have shaped American History.

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Contents

III
3
IV
16
V
24
VI
30
VII
35
VIII
37
IX
44
X
47
XXXVII
150
XXXVIII
156
XXXIX
163
XL
166
XLI
170
XLII
172
XLIII
178
XLIV
182

XI
50
XII
56
XIII
66
XIV
67
XV
70
XVI
72
XVII
73
XVIII
76
XIX
80
XX
81
XXI
85
XXII
93
XXIII
94
XXIV
99
XXV
103
XXVI
107
XXVII
113
XXVIII
117
XXIX
119
XXX
120
XXXI
124
XXXII
126
XXXIII
127
XXXIV
130
XXXV
134
XXXVI
144
XLV
191
XLVI
195
XLVII
206
XLVIII
213
XLIX
218
L
223
LI
228
LII
231
LIII
236
LIV
242
LV
254
LVI
259
LVII
266
LVIII
274
LIX
276
LX
279
LXI
282
LXII
286
LXIII
293
LXIV
297
LXV
303
LXVI
306
LXVII
311
LXVIII
319
LXIX
324
Copyright

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Page 146 - The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it, If the former part of the alternative be true, then a legislative act contrary to the constitution "is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
Page 146 - If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect ? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law ? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on.
Page 146 - So if a law be in opposition to the constitution, if both the law and the constitution apply to a particular case so that the court must either decide that case conformably to the law disregarding the constitution or conformably to the constitution disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
Page 287 - No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley, " The right to one's person may be said to be a right of complete immunity : to be let alone.
Page 85 - But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope, and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.
Page 84 - Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty.
Page 35 - when in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature and nature's God entitle them, a decent respect for the opinions of mankind requires that they should declare the causes which impel them to the separation.
Page 84 - While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.
Page 308 - That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection.

About the author (1993)

H. L. Pohlman is associate professor of political science at Dickinson College. He is the author of Justice Oliver Wendell Holmes and Utilitarian Jurisprudence and Justice Oliver Wendell Holmes: Free Speech and the Living Constitution.

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