in Constitutional Conscience

Published by University of Chicago Press

Published in print June 2008 | ISBN: 9780226677255
Published online March 2013 | e-ISBN: 9780226677309 | DOI:

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In Marbury v. Madison, Chief Justice John Marshall justified the judiciary's exercising the authority to disregard a statutory command when, in the judges' opinion, that command contravenes the Constitution of the United States. Marshall believed that the practice of judicial review rests not only on the structural features of the U.S. Constitution, but flows as well from the judge's individual obligations as a moral actor. One hundred ninety-nine years later, however, Richard A. Posner implied that a judge has no kind of moral or even political duty to abide by constitutional text. This book explores the debate about judicial review and argues that the key to understanding the moral dimension of constitutional decision is the demand it places on the conscience of the judge. It discusses what the author believes to be the most salient features of the moral circumstances in which a Supreme Court justice finds him- or herself when called upon to make a constitutional decision. Finally, the book examines whether American constitutionalism is a good idea.

Keywords: Marbury v. Madison; John Marshall; Supreme Court; judicial review; Richard A. Posner; Constitution; conscience; constitutional decision; constitutionalism; judges

Chapter.  5245 words. 

Subjects: Constitutional and Administrative Law

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