The Intelligible Constitution

The Intelligible Constitution : The Supreme Court's Obligation to Maintain the Constitution as Something We the People Can Understand

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In Webster v. Reproductive Health Services, a critical abortion rights case, a bitterly divided Supreme Court produced no less than six different opinions. Writing for the plurality, Chief Justice Rehnquist attacked the trimester framework established in Roe v. Wade because it was "not found in the text of the Constitution or in any place else one would expect to find a constitutional principle." This approach, writes legal authority Joseph Goldstein, confuses constitutional principles (in this case, the right to privacy) with the means to protect them (here, the trimester system). As a result, the Court left the public bewildered about the constitutional scope of a woman's right to reproductive choice--failing in its duty to speak clearly to the American public about the Constitution. In The Intelligible Constitution, Goldstein makes a compelling argument that, in a democracy based upon informed consent, the Supreme Court has an obligation to communicate clearly and candidly to We the People when it interprets the Constitution. After a fascinating discussion of the language of the Constitution and Supreme Court opinions (including the analysis of Webster), he presents a series of opinion studies in important cases, focusing not on ideology but on the Justices' clarity of thought and expression. Using the two Brown v. Board of Education cases, Cooper v. Aaron, Regents of the University of California v. Bakke, and others as his examples, Goldstein demonstrates the pitfalls to which the Court has succumbed in the past: Writing deliberately ambiguous decisions to win the votes of colleagues, challenging each others' opinions in private but not in public, and not speaking honestly when thewriter knows a concurring Justice misunderstands the opinion which he or she is supporting. Even some landmark decisions, he writes, have featured seriously flawed opinions--preventing We the People from understanding why the Justices reasoned as they did, and why they disagreedshow more

Product details

  • Paperback | 224 pages
  • 138.9 x 207.5 x 11.7mm | 253.8g
  • Oxford University Press Inc
  • New York, United States
  • English
  • Reprint
  • 0195093755
  • 9780195093759

About Joseph Goldstein

Joseph Goldstein is Sterling Professor of Law at Yale University Law School, and is the author and coauthor of a number of books on the law, including The Government of a British Trade Union, Beyond the Best Interests of the Child, and Criminal Law, Theory, and more

Review quote

`I responded most favourably to the fresh air one breathes while reading the manuscript...In addition to constitutional law scholars, I think that it would appeal to those law schools who study jurisprudence, and also those whose interests are in law and humanities more generally. Outside of law schools, political scientists are a possible audience, but I think that those who study 'communications' or 'rhetoric' would be even more interested. Last of all, I think this book might well be read by that mythical beast, the common reader.' Robert Nagel, University of Coloradoshow more

Back cover copy

Both a fascinating look at how the Court shapes its opinions and a clarion call to action, this book contributes to our understanding of how to maintain the Constitution as a living document, by and by for the people, in its third more

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