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图书目录：Detailed Contents, Chapters 1--6 ix
Preface xviii Introduction One The Supreme Court and the Political Branches: Democratic Theory and Practice Two The Individual versus Government: The Essential Function of Judicial Review Three The Fragile Character of Judicial Review: The Problems of Popular Noncompliance and Exhaustible Institutional Capital Four The Scope of National Power vis-a-vis the States: The Dispensability of Judicial Review Five Constitutional Conflicts between Congress and the President: A Subject for the Political Process Six Political Regulation of Judicial Authority: A Matter for Court Review Notes Cases Cited in Text Index One The Supreme Court and the Political Branches: Democratic Theory and Practice I. The Conflict between Majoritarian Democracy and Judicial Review II. The Defective Character of Congress's Majoritarian Responsibility A. The Process of Election and Interelection Representation B. The Lawmaking Machinery in Operation 1. The Congressional Structure 2. Filibuster 3. Congressional Committees 4. Committee Chairmen 5. Party Leaders 6. Conference Committee 7. Interest Groups C. A Summary and Qualification III. The "Negative" Quality of the Antimajoritarianism of the Lawmaking Process and Its Consequences for Judicial Review ix Detailed Contents IV. The Majoritarian Responsibility of Congress Reexamined A. The Process of Election and Interelection Representation B. The Lawmaking Machinery in Operation 1. Bicameralism and Filibuster 2. Congressional Committees and Chairmen 3. Party Leaders 4. Conference Committee 5. Interest Groups V. The Role of the Executive Branch VI. The Political Accountability of the Supreme Court A. Constitutional Amendment B. Political Control over Budget and Terms C. Political Control over Composition D. Political Curtailment of Appellate Jurisdiction E. Summary VII. Conclusion Two The Individual versus Government: The Essential Function of Judicial Review I. Categories of Constitutional Provisions II. Who Determines Constitutionality and By What Standard? III. Paramount Justification for Judicial Review A. Difficulty of Empirical Verification B. Historical and Contemporary Opinions C. Functional Justification IV. Substantive Scope of Individual Rights: An Overview A. Political Rights B. Specifically Designated Rights C. Liberties Arising in the Judicial Process D. Unmentioned Liberties 1. "Fundamental" Rights 2. "Suspect" Classifications E. Alternative Courses Available V. The Record of Judicial Review for Individual Rights A. Critical Appraisals B. Complexities in Documentation C. Prior to 1935 D. The Hughes, Stone, and Vinson Courts E. The Warren Court 1. Racial Equality 2. Rights of the Accused 3. Freedom of Expression 4. Reapportionment F. The Burger Court 1. Retreats 2. Vacillations 3. Advances 4. Effects VI. Limits and Reach of Judicial Influence VII. Conclusion Three The Fragile Character of Judicial Review: The Problems of Popular Noncompliance and Exhaustible Institutional Capital I. The Nature of the Problem A. Invalidations Not Contrary to Popular Will B. Invalidations Contrary to Popular Will II. The Reasons for Public Hostility A. Peculiar Quality of Constitutional Decisionmaking B. Protection of Politically Weak and Unpopular Groups C. Intense Reactions of Losers D. Breadth of Constitutional Language III. The Dynamics of Popular Reaction A. Reliance on Public Acquiescence B. Symbolic and Educative Influence C. Phenomenon of Exhaustible Capital IV. The Record of Noncompliance A. State Officials B. B. National Political Branches C. C. Citizenry at Large: Empirical Studies D. V. The Role of Elected Leaders and E. Community Elites F. A. Effect on Popular Attitudes G. B. Direct Enforcement of Decisions - H. VI. The Cumulative Impact of Public Hostility I. A. Civil War Era J. B. Bluntness ol Political Controls K. C. Progressive Transference of Antagonism L. D. Judicial Cognizance of the Problem M. VII. The Theory of Constant Growth of Capital N. VIII. The Significance for Individual Rights O. A. Judicial Record of Success P. B. Hostility Generated by Decisions Q. C. Relevance for Individual Rights Proposal R. 1. Judges as Predictors S. 2. Essential Judicial Role T. IX. Conclusion U. Four The Scope of National Power vis- a-vis the States: V. The Dispensability of Judicial Review W. I. Constitutional Framework X. A. Grants of National Power Y. B. Limitations on State Power Z. C. Grants of State Power and Limitations on AA. National Power BB. II. Identifying the Federalism Issue CC. III. The Federalism Proposal DD. IV. Representation of State Interests in the National EE. Political Process FF. A. Senate GG. B. House of Representatives HH. C. Electors II. D. Senators and Representatives JJ. E. The Presidency KK. F. The Intergovemmental Lobby G. Identifying the "Viewpoint" of a "State" H. The Record of Experience 1. Historical Prediction 2. Comparison of State and Federal Officials 3. Negative Quality of National Political Process 4. Examples of National Solicitude for States' Rights 5. Vitality of State and Local Government V. Defeat of Regional Interests in the National Political Process A. Instances of Conceded National Power B. Homogeneous versus Heterogeneous Nature of Regional Interests VI. Reach of the Federalism Proposal VII. Relationship of the Federalism Proposal to Issues of Individual Rights A. Distinction between Derivative and Independent Individual Rights Claims 1. Derivative Rights 2. Independent Rights a. Unavailability of Narrower Constitutional Decision b. Civil War Amendments Analysis c. Final Illustration B. Qualitative Difference between Issues of Federalism and Individual Rights C. Assertion of States' Rights by Individuals VIII. State Encroachments on National Power A. Historic Rationale for Judicial Role B. Contrast with True Judicial Review C. Functional Justification for Judicial Role D. Possible Modifications of Judicial Role 1. Official National Representative 2. Special Federal Agency IX. Objections to the Federalism Proposal A. Political Branches as Judges of the Scope of Their Own Power 1. Traditional View 2. Contrary Authority 3. Outline of a Functional Approach B. Efficacy of Judicial Review for Preserving Federalism 1. Destruction of State Sovereignty a. Control over Regulation, Taxing, and Spending b. Control over Officials c. Distinction between Substantive Constitutionality and Proper Arbiter 2. Patent Constitutional Violations 3. Deterrent Effect of Judicial Review a. Abdication of Political Responsibility b. Aggravation Caused by Judicial Review (1) Consequences of delay (2) Individual rights distinguished C. Value of Judicial Legitimation 1. Validity of Premises 2. Source of Public Hostility 3. Popular Misconception Respecting Nonjusticiability D. Competence of Political Branches on Constitutional Issues 1. Reach of the Objection 2. Special Capacity for Federalism Issues 3. Substantial Judicial Role Remains E. Intent of the Framers F. Federalism as a Guarantor of Individual Liberty 1. Tenth Amendment 2. Local Government as a Protector of Freedom a. Efficiency versus Freedom b. Nature of Freedom c. Relevance of Federalism d. Record of Experience e. Role of Judicial Review to Protect Self-Determination X. Conclusion Five Constitutional Conflicts between Congress and the President: A Subject for the Political Process I. Introduction A. Relevant Constitutional Provisions II. The Separation Proposal III. Separation of Powers as a Guarantor of Individual Liberty A. Statements of the Position B. Pre-Revolutionarv War Meaning of Separation of Powers C. The Framers' Thinking D. The Modern Justification for Judicial Review: Fear of Swift and Arbitrary Executive Action 1. Limited Scope of the Argument 2. Nature of the Freedom Protected 3. Semantic Due Process Argument 4. Adequacy of Checks and Balances 5. Strictures on Ultra Vires Executive Action a. Executive Branch b. External Groups c. Protective Devices of Congress (1) Refusal to appropriate funds (2) Refusal to enact laws (3) Refusal to confirm appointments (4) Impeachment (5) Foreign affairs powers of Congress (6) Congress presented withfait accompli (a) Actions available to Congress (b) Development of a constitutional crisis (c) Accommodation usually reached (d) Unlikelihood of successful judicial action (7) Successful executive action that burdens individuals d. Check of the Electorate (1) Congressional investigation as a stimulus (2) Jeopardy to President's total program E. Consequences of Judicial Involvement IV. Contours of the Separation Proposal A. The Steel Seizure Case 1. Absence of Nonconstitutional Issues 2. The President's Constitutional Authority to Engage in Lawmaking: Theories of Presidential Power 3. Application of the Separation Proposal a. Absence of Relevant Congressional Legislation b. Presence of Relevant Congressional Legislation B. Independent Individual Rights Issues C. President's Removal Power 1. Scope of the Problem 2. Application of the Separation Proposal 3. Individual Rights Issues 4. Submission of Issue to Judiciary by the Political Branches D. Executive Privilege and the Separation of Powers 1. United States v. Nixon 2. Nixon v. Administrator of General Services 3. Executive Privilege and Individual Rights a. Criminal Prosecutions b. Civil Litigation E. Directly Conflicting Assertions of Power between the Political Branches That Affect Individual Interests 1. Executive Assignment of Statutory Authority 2. Pardon and Commutation Power 3. Executive Privilege Hypotheticals F. Foreign Affairs 1. Executive Agreements 2. Legislative Veto 3. Individual Rights Issues a. Judicial Deference to Political Judgments (1) Exclusion and deportation of aliens (2) Civil litigation G. President's Veto Power H. President's Refusal to Execute Laws 1. The Kendall Case 2. Impoundment I. Delegation of Power between the Political Branches V. Impact of the Separation Proposal VI. Conclusion Six Political Regulation of Judicial Authority: A Matter for Court Review Introduction A. Judicial Transgression of Political Power B. Political Transgression of Judicial Power II. The Judicial Proposal A. Broad Contours B. Functional Justifications C. Consistency with Traditional Views D. Illustrations of Prior Decisions III. Political Restrictions of Judicial Authority A. Relationship to Individual Rights Proposal B. Relationship to Federalism Proposal 1. Eleventh Amendment C. Relationship to Separation Proposal D. Participation of Article III Courts as an Individual Right 1. State Courts 2. Federal Legislative Courts and Administrative Agencies E. Issues concerning Scope of the Federal Judicial Power IV. Political Expansions of Judicial Authority A. Conflict with Terms of Article III B. Conflict with Court's Essential Role 1. Technique of Statutory Interpretation 2. Unmistakable Authorization of Jurisdiction 3. Pertinent Constitutional Provision 4. Consistency with Congress's Constitutionally Authorized Control of Jurisdiction |
