Constitutional Choices

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Description
The Constitution is in part the sum of all these choices. But it is also more than that. It must be more if it is to be a source either of critique or of legitimization. Thus, just as the constitutional choices we make are channeled and constrained by who we are and by what we have lived through, so too they are constrained and channeled by a constitutional text and structure and history, by constitutional language and constitutional tradition, opening some paths and foreclosing others. To ignore or defy those constraints is to pretend to a power that is not ours to wield. But to pretend that those constraints leave no freedom, or must lead us all to the same conclusions
I write in part out of a conviction that constitutional choices, whatever else their character, must be made and assessed as fundamental choices of principle, not as instrumental calculations of utility or as pseudo-scientific calibrations of social cost against social benefit calculations and calibrations whose essence is to deny the decision maker's personal responsibility for choosing. The point deserves particular emphasis at a time when the Supreme Court, long our nation's principal expositor of the Constitution, is coming increasingly to resemble a judicial Office of Management and Budget, straining constitutional discourse through a managerial sieve in which the "costs" (usually tangible and visible) are supposedly "balanced" against the "benefits" (usually ephemeral and diffuse) of treating constitutional premises seriously, and in which proposed constitutional rulings are examined less within a judicious framework of first principles than within a bureaucratic framework that asks only what each possible decision would add to, or subtract from, the decision maker's latest step.
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Table of Contents
PART I THE NATURE OF THE ENTERPRISE
1. The Futile Search for Legitimacy
2. The Pointless Flight from Substance
3. The False Equation of Procedural ism with Passivity: A Constitution We Are Amending-and Construing
4. Construing the Sounds of Congressional and Constitutional Silence
PART II THE SEPARATION AND DIVISION OF POWERS
5. Silencing the Oracle: Carving Disfavored Rights out of the Jurisdiction of Federal Courts
6. Entrusting Non-Legislative Power to Congress
7. Entrusting Federal Judicial Power to Hybrid Tribunals
8. Choke Holds, Church Subsidies, and Nuclear Meltdowns: Problems of Standing?
9. The Errant Trajectory of State Sovereignty
10. Congressional Action as Context Rather Than Message: The Case of Interstate Bank Mergers
11. Guam's Vanishing Bonds: A Vignette in Taxation without Legislation
PART III THE STRUCTURE OF SUBSTANTIVE RIGHTS
12. Compensation, Contract, and Capital: Preserving the Distribution of Wealth
13. Speech as Power: Of Swastikas, Spending, and  the Mask of "Neutral Principles"
14. Dismantling the House That Racism Built Assessing "Affirmative Action"
15. Reorienting the Mirror of Justice: Gender, Economics, and the Illusion of the "Natural"
16.Refocusing the "State Action" Inquiry: Separating State Acts from State Actors
Epilogue
Notes
Index of Cases
General Index
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Author Details   
Laurence H Tribe