The (Un)Written Constitution

2021 ◽  
Author(s):  
George Thomas
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Freedom Of Speech ◽  
Public Understanding ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Political Actors ◽  
The Public ◽  
The Supreme Court

The late Justice Scalia relished pointing to departures from text as departures from the Constitution, but in fact his jurisprudence relied on unwritten ideas. As textualism has become more prominent with the elevation of Justices Gorsuch, Kavanaugh, and Barrett to the Supreme Court—jurists in the mold of Scalia—it is crucial to reveal the unwritten ideas that drive textualist readings of the Constitution. Our deepest debates about America’s written Constitution are not about constitutional text but about the unwritten ideas and understandings that guide our reading of text. This fact is obscured by the public understanding of textualism and originalism as put forward by its most prominent judicial advocates. The (Un)Written Constitution makes these ideas visible by turning to the practices of Supreme Court justices and political actors in interpreting the Constitution over more than two centuries. From founding debates about freedom of speech and religion to contemporary arguments about judicial review, the separation of powers, same-sex marriage, and partisan gerrymandering, this work highlights the too-often unacknowledged ideas that animate our debates about the written Constitution. Contrary to textual jurists, these recurrent debates are not about whether to follow the text; they are disputes about what fidelity to the text requires. How do we weigh and balance different textual provisions and see them as part of a constitutional whole? The text does not answer such questions. This book illustrates that moving beyond the text is an inescapable feature of interpreting America’s written Constitution.

I’m Sweet on You

2018 ◽  
pp. 280-322
Author(s):  
E. Patrick Johnson
Keyword(s):  
Black Women ◽  
Supreme Court ◽  
Court Case ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Southern States ◽  
Legal Limits ◽  
Romantic Attachments ◽  
The Supreme Court ◽  
Supreme Court Case

This chapter probes the narrators’ deep and enduring emotional and romantic attachments to other women, primarily by focusing on stories of dating and marriage. Johnson’s interlocutors recall: stories of how they met their partners, memories of particular dates, their family’s responses to their relationships, and, for some of them, how and when they decided to pursue marriage. Importantly, Johnson notes that all of these interviews took place before the Supreme Court case that legalized same-sex marriage across the nation in 2015. Despite the legal limits of partnership in Southern states, several of these women chose to remain in the region. Their choices reflect the need to think expansively about the possibilities for queer life for Black women in the South.

The Supreme Court and Elites

2020 ◽  
pp. 15-58
Author(s):  
Neal Devins ◽  
Lawrence Baum
Keyword(s):  
Supreme Court ◽  
Social Issues ◽  
Ronald Reagan ◽  
Same Sex ◽  
Policy Positions ◽  
The Public ◽  
Highly Educated ◽  
The Supreme Court ◽  
Good Policy

This chapter develops the argument that is summarized in chapter 1. One lesson of social psychology is that Supreme Court justices are not single-mindedly devoted to making good law or good policy. Rather, they have multiple goals that include a concern for their reputations, especially how they are regarded by the elite groups of which they are part. As a result, while the general public may have an impact on the justices, they respond primarily to fellow elites. Indeed, the Court’s decisions on most controversial social issues such as affirmative action and same-sex marriage are more consistent with the policy positions of highly educated people than the positions of the public as a whole. Starting with the 1980 election of Ronald Reagan, elites have become less homogeneous; over the past 25 years, today’s elites increasingly reflect the growing partisan divide among liberal Democrats and conservative Republicans. Nonetheless, norms within the elite legal profession such as collegiality and legally oriented decision making shape the behavior of justices, sometimes counteracting the effects of ideology.

scholarly journals SAME-SEX MARRIAGE AND THE SAME OLD CONSTITUTION*

2011 ◽  
Vol 14 (2 & 3) ◽  
pp. 2005
Author(s):  
Ronalda Murphy
Keyword(s):  
Supreme Court ◽  
Social Institution ◽  
Supreme Court Of Canada ◽  
Same Sex ◽  
Political Debate ◽  
Same Sex Marriage ◽  
Political Issues ◽  
Same Sex Couples ◽  
The Supreme Court ◽  
Do So

The Reference re Same-Sex Marriage1 is not a major opinion on the rights of same-sex couples in Canada, but it is nonetheless an important and fascinating case. There are only a few lines that are about the “rights” of same-sex couples. Did the Supreme Court of Canada “duck” the issue? Was the Court carefully gauging how much or little political capital it had and making a political decision to say as little as possible on this topic? The Court certainly displayed strategic brilliance, but it did not do so in the name of avoiding the “political” hot topic of same-sex marriage. It is factually difficult to maintain the view that the Supreme Court of Canada is loath to enter into this political debate. It has been the lead social institution in Canada in terms of responding to the claims of gays and lesbians to equality in law,2 and it has never been shy of dealing with topics simply because they involve controversial political issues.3 Rather, the Court’s brilliance lies in its minimalist and almost weary tone. This approach had the effect of taking the wind out of the sails of those opposed to same-sex marriage: the same-sex advocates definitely win the constitutional race, but they do so because according to the Supreme Court, there is no provincial constitutional headwind that can stop them. In short, provinces can complain all they want about the federal position in favour of same-sex marriage, but the wedding will go on despite and over their objections to the ceremony.

scholarly journals Strange Bedfellows: How an Anticipatory Countermovement Brought Same‐Sex Marriage into the Public Arena

2014 ◽  
Vol 39 (02) ◽  
pp. 449-473 ◽  
Author(s):  
Michael C. Dorf ◽  
Sidney Tarrow
Keyword(s):  
Social Movement ◽  
Social Movement Organizations ◽  
Marriage Equality ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Political Actors ◽  
The Public ◽  
Triangular Relationship ◽  
Movement Organizations ◽  
Lgbt Movement

Since the 1980s, social movement scholars have investigated the dynamic of movement/countermovement interaction. Most of these studies posit movements as initiators, with countermovements reacting to their challenges. Yet sometimes a movement supports an agenda in response to a countermovement that engages in what we call “anticipatory countermobilization.” We interviewed ten leading LGBT activists to explore the hypothesis that the LGBT movement was brought to the fight for marriage equality by the anticipatory countermobilization of social conservatives who opposed same‐sex marriage before there was a realistic prospect that it would be recognized by the courts or political actors. Our findings reinforce the existing scholarship, but also go beyond it in emphasizing a triangular relationship among social movement organizations, countermovement organizations, and grassroots supporters of same‐sex marriage. More broadly, the evidence suggests the need for a more reciprocal understanding of the relations among movements, countermovements, and sociolegal change.

scholarly journals Penerapan Asas Audi Alteram Et Partem Pada Perkara Judicial review Di Mahkamah Agung

2019 ◽  
Vol 3 (1) ◽  
pp. 37
Author(s):  
Asep Syarifuddin Hidayat
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Judicial Power ◽  
Constitutional Court ◽  
The Public ◽  
Trial Process ◽  
The Supreme Court ◽  
The Law ◽  
The Impact

Abstract.Article 13 paragraph 1 of Act Number 48 of 2009 concerning Judicial Power states that all court hearings are open to the public, unless the Act says otherwise. Therefore, a judicial review trial must be open to the public. If the trial process of the judicial review is carried out in a closed manner, it can be considered a legal defect, because it is contrary to Article 13 paragraph (3) of the Law. The Law of the Supreme Court is not regulated that the judicial review is closed, because in the judicial review there is a need for openness or principle of audiences of parties or litigants must be given the opportunity to provide information and express their opinions, including the defendant as the maker of Legislation invitation under the law, so that the impact of the decision will need to be involved.Keywords: Judicial Review, Audi Alteram Et Partem Principle, Supreme Court, Constitutional Court Abstrak.Pasal 13 ayat 1 Undang-Undang Nomor 48 Tahun 2009 tentang Kekuasaan Kehakiman menyebutkan semua sidang pemeriksaan pengadilan terbuka untuk umum, kecuali Undang-Undang berkata lain. Oleh karena itu,  judicial review persidangan harus dilakukan terbuka untuk umum. Apabila proses persidangan judicial review ini dilakukan secara tertutup, maka dapat dinilai cacat hukum karena bertentangan dengan Pasal 13 ayat (3) Undang-Undang tersebut. Undang-Undang Mahkamah Agung pun tidak diatur bahwa persidangan judicial review bersifat tertutup, karena dalam judicial review perlu adanya keterbukaan atau asas audi alteram et partem atau pihak-pihak yang berperkara harus diberi kesempatan untuk memberikan keterangan dan menyampaikan pendapatnya termasuk pihak termohon sebagai  pembuat Peraturan Perundang-Undangan di bawah Undang-Undang sehingga akan terkena dampak putusan perlu dilibatkan.Kata Kunci: Judicial Review, Asas Audi Alteram Et Partem, Mahkamah Agung, Mahkamah Konstitusi.

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