The Intelligible Constitution: The Supreme Courts Obligation to Maintain the Constitution as…

Paperback | November 1, 1991

byJoseph Goldstein

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In Webster v. Reproductive Health Services, a critical abortion rights case, a bitterly divided Supreme Court produced no less than six different opinions. Writing for the plurality, Chief Justice Rehnquist attacked the trimester framework established in Roe v. Wade because it was "not foundin the text of the Constitution or in any place else one would expect to find a constitutional principle." This approach, writes legal authority Joseph Goldstein, confuses constitutional principles (in this case, the right to privacy) with the means to protect them (here, the trimester system). Asa result, the Court left the public bewildered about the constitutional scope of a woman's right to reproductive choice--failing in its duty to speak clearly to the American public about the Constitution. In The Intelligible Constitution, Goldstein makes a compelling argument that, in a democracy based upon informed consent, the Supreme Court has an obligation to communicate clearly and candidly to We the People when it interprets the Constitution. After a fascinating discussion of thelanguage of the Constitution and Supreme Court opinions (including the analysis of Webster), he presents a series of opinion studies in important cases, focusing not on ideology but on the Justices' clarity of thought and expression. Using the two Brown v. Board of Education cases, Cooper v. Aaron,Regents of the University of California v. Bakke, and others as his examples, Goldstein demonstrates the pitfalls to which the Court has succumbed in the past: Writing deliberately ambiguous decisions to win the votes of colleagues, challenging each others' opinions in private but not in public, andnot speaking honestly when the writer knows a concurring Justice misunderstands the opinion which he or she is supporting. Even some landmark decisions, he writes, have featured seriously flawed opinions--preventing We the People from understanding why the Justices reasoned as they did, and whythey disagreed with each other. He goes on to suggest five "canons of comprehensibility" for Supreme Court opinions, to ensure that the Justices explain themselves clearly, honestly, and unambiguously, so that all the various opinions in each case would constitute a comprehensible message abouttheir accord and discord in interpreting the Constitution. Both a fascinating look at how the Court shapes its opinions and a clarion call to action, this book provides an important addition to our understanding of how to maintain the Constitution as a living document, by and for the People, in its third century.

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From Our Editors

Both a fascinating look at how the Court shapes its opinions and a clarion call to action, this book contributes to our understanding of how to maintain the Constitution as a living document, by and by for the people, in its third century.

From the Publisher

In Webster v. Reproductive Health Services, a critical abortion rights case, a bitterly divided Supreme Court produced no less than six different opinions. Writing for the plurality, Chief Justice Rehnquist attacked the trimester framework established in Roe v. Wade because it was "not foundin the text of the Constitution or in any p...

From the Jacket

Both a fascinating look at how the Court shapes its opinions and a clarion call to action, this book contributes to our understanding of how to maintain the Constitution as a living document, by and by for the people, in its third century.

Joseph Goldstein is Sterling Professor of Law at Yale University Law School, and is the author and coauthor of a number of books on the law, including The Government of a British Trade Union, Beyond the Best Interests of the Child, and Criminal Law, Theory, and Process.

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Format:PaperbackDimensions:224 pages, 8.27 × 5.51 × 0.47 inPublished:November 1, 1991Publisher:Oxford University Press

The following ISBNs are associated with this title:

ISBN - 10:0195093755

ISBN - 13:9780195093759

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From Our Editors

Both a fascinating look at how the Court shapes its opinions and a clarion call to action, this book contributes to our understanding of how to maintain the Constitution as a living document, by and by for the people, in its third century.

Editorial Reviews

"A bold and brave appeal to restore the Constitution to the people. Professor Goldstein calls on the Supreme Court for comprehensibility, clarity, candor, and integrity in its opinions--and shows how these qualities have been lacking. By insisting that the Court must not merely decide butmust also explain and communicate, Goldstein would enable the people to exercise their sovereign role once more."--Charles A. Reich, Yale Law School