Liberating abstraction

Article Abstract:

Republican judges such as Frank H. Easterbrook interpret powers and rights asymmetrically, enhancing government powers while limiting individual rights. Powers are interpreted at a higher level of abstraction than rights, but they should instead be treated at the same level. For example, extending the power to regulate commerce to the regulation of pollution is not questioned, but an analogous extension of the concept of property to include privacy in the case of Bowers v Hardwick is controversial. The jurisprudence of Robert Jackson during the New Deal illustrates the use of abstraction in interpreting rights.

Cases, Criticism and interpretation, Civil rights, Easterbrook, Frank H.

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Abstraction and authority

Article Abstract:

The level of abstraction used in constitutional interpretation is constrained by the need to justify judicial power, so no single level can be imposed by theory. In new areas of law where legal principles have yet to be established, the level of abstraction must be low. In other cases, the legal texts themselves dictate the level of abstraction at which they should be interpreted. The authority of judicial review depends on the power of the past, in the form of the Constitution and judicial precedent, which limits judicial creativity. Political novelty is reserved for the legislature.

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Our unconventional founding

Article Abstract:

The Federalists set a precedent for revolutionary reform that was later followed by Republicans during the Reconstruction and by New Deal Democrats. The Federalists changed the requirements for ratification of the Constitution from those specified in the Articles of Confederation. However, they did so by adapting established institutions and by gaining widespread popular support, a process which enabled them to institute change without making a complete break with the preexisting system.

United States, Analysis, Political activity, History, Political reform, Constitutional history, Federal Party

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