History of the U.S. Supreme Court
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William M. Wiecek in Liberty Under Law writes an interpretive history of the United States Supreme Court, considering the parameters of the constitutional debate of the past century and the ways in which that debate developed as well as the directions in which it might be taken in the future. The author begins by indicating the current state of the debate on constitutionalism as indicated by two crudely polarized positions, using the names "interpretivism" and "noninterpretivism," terms which the author finds inadequate. 'Interpretivism" Wiecek calls constitutional liberalism, and it demands that the Court find its values exclusively in the text of the Constitution, the intent of the Framers, and the historical situation of the Framers. The second pole is called by Wiecek the fundamental values approach, a position derived from a view of judging espoused by Justices Oliver Wendell Holmes, Jr., Benjamin N. Cardozo, Felix Frankfurter, and John M. Harlan. This approach denies that there are mathematical formulas for determining constitutional questions and that in determining constitutional issues, it is necessary to examine their origin and the line of their growth. Any given case is to be decided in terms of our whole experience and not just in terms of the experience of the Framers. Wiecek offers his analysis as a means of renewing inquiry on these issues to frame the question better and less simplistically. Though Wiecek calls the one position constitutional liberalis
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ined in this century as it was not before and that would color the debate over legitimacy and original intent versus activism. In Chapter 6, Wiecek discusses the way the Supreme Court started addressing issues of foreign affairs and the limits of executive authority, issues that had only rarely been addressed by the Court prior to World War I. America's entry into that war, however, brought about an unprecedented expansion of national authority. A number of wartime issues were raised by the government under the banner of national security, and the Supreme Court showed itself all too willing to curtail individual liberties when the federal government said this was necessary in a state of war. This had occurred before in the Civil War, but it was much more damaging in World War I. Free speech was curtailed when it was deemed subversive.
Treaty issues were also addressed by the Court at this time, and decisions made then would have consequences after World War II as Congress tried to pass legislation that would reduce the freedom of the President in negotiating and drafting treaties. Treaty issues as addressed by the court raise the further question of whether the power of the President in the conduct of foreign affairs can be
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Approximate Word count = 1796
Approximate Pages = 7 (250 words per page)
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