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

The Intelligible Constitution: The Supreme Court's Obligation to Maintain the

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

Paperback

Published: 24th August 1995
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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 the writer 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 disagreed with each other. He goes on to suggest five "canons of comprehensibility" for Supreme Court opinions, to ensure that the Justices explain themselves clearly, honestly, and unambiguously, so that all the various opinions in each case would constitute a comprehensible message about their accord and discord in interpreting the Constitution.
Both a fascinating look at how the Court shapes its opinions and a clarion call to action, this book provides an important addition to our understanding of how to maintain the Constitution as a living document, by and for the People, in its third century.

"Goldstein brilliantly expounds the Supreme Court's failure to discharge a major obligation--making the law of the Constitution understandable--and points the way to a cure. This book deserves a wide audience in addition to the nine persons in need of his message."--Judge Robert Bork "A powerful call for clarity and candor in the writing of judicial opinions....His message is far-reaching."--Alan Dershowitz, The Boston Herald "Very few books offer as high a return on as small an investment of time....Well worth reading."--ABA Journal "This is a thoughtfully and beautifully written book about language and the law. It concerns the clarity or lack of clarity of the opinions of the Supreme Court of the United States....Goldstein is wise and bold in his diagnosis and in his prescription. His solution is what mathematicians call 'elegant.'"--Appellate Practice Journal "The Intelligible Constitution...is persuasive, fascinating, and excellent!"--Roy M. Mersky, University of Texas at Austin "Goldstein brilliantly expounds the Supreme Court's failure to discharge a major obligation--making the law of the Constitution understandable--and points the way to a cure. This book deserves a wide audience in addition to the nine persons in need of his message."--Judge Robert Bork "A powerful call for clarity and candor in the writing of judicial opinions....His message is far-reaching."--Alan Dershowitz, The Boston Herald "Very few books offer as high a return on as small an investment of time....Well worth reading."--ABA Journal "This is a thoughtfully and beautifully written book about language and the law. It concerns the clarity or lack of clarity of the opinions of the Supreme Court of the United States....Goldstein is wise and bold in his diagnosis and in his prescription. His solution is what mathematicians call 'elegant.'"--Appellate Practice Journal "The Intelligible Constitution...is persuasive, fascinating, and excellent!"--Roy M. Mersky, University of Texas at Austin "You brightened [a] weekend for me. I allowed myself the pleasure of reading The Intelligible Constitution....I can earnestly hope that the Nine can and will be persuaded to adopt your idea of a final-phase conference....It would be wonderful if they coud be brought to face the job and face each other in doing it as you recommend. All of us should be touting this splendid idea."--Marvin E. Frankel, Former Federal Judge "In The Intelligible Constitution, one of our great teachers teaches greatly once again. I only pray hope the intended audience pays attention."--John Hart Ely, Stanford University "While constitutional scholars debate the esoterica of interpretive theory, Professor Goldstein has addressed the heart of the matter--that the Constitution belongs not to a legal elite, but to all of us. The Intelligible Constitution is a wonderful book, by one of our greatest law teachers."--H. Jefferson Powell, Duke University "A bold and brave appeal to restore the Constitution to the people. Professor Goldstein calls on the Supreme Court for comprehensibility, clarity, candor, and integrity in its opinions--and shows how these qualities have been lacking. By insisting that the Court must not merely decide but must also explain and communicate, Goldstein would enable the people to exercise their sovereign role once more."--Charles A. Reich, Yale Law School

Acknowledgmentsp. vii
A Forewordp. xi
Why an Intelligible Constitutionp. 1
Made for an Undefined Futurep. 3
Opinion Studiesp. 21
with Studied Ambiguity: National League of Cities V. Usery and Garcia V. San Antonio Metro Transit Authorityp. 25
Had Understanding Been the Goal: Cooper V. Aaronp. 43
Decisions Unexplained: The Brown V. Board of Education Casesp. 57
Failing to Take Their Own and Each Other's Opinions Seriously: Regents of the University of California V. Bakkep. 81
Canons of Comprehensibilityp. 105
Toward the Intelligible Constitutionp. 109
Appendix: The Constitution of the United Statesp. 135
Notesp. 163
Case Indexp. 195
Name Indexp. 197
Indexp. 199
Table of Contents provided by Publisher. All Rights Reserved.

ISBN: 9780195093759
ISBN-10: 0195093755
Series: Oxford Paperbacks
Audience: Professional
Format: Paperback
Language: English
Number Of Pages: 224
Published: 24th August 1995
Publisher: Oxford University Press Inc
Country of Publication: US
Dimensions (cm): 20.75 x 13.89  x 1.17
Weight (kg): 0.2