Constitutional rights, moral controversy, and the Supreme Court

Michael J. Perry0521755956, 9780521755955

In this important new book, Michael J. Perry examines three of the most disputed constitutional issues of our time: capital punishment, state laws banning abortion, and state policies denying the benefit of law to same-sex unions. The author, a leading constitutional scholar, explains that if a majority of the justices of the Supreme Court believes that a law violates the Constitution, it does not necessarily follow that the Court should rule that the law is unconstitutional. In cases in which it is argued that a law violates the Constitution, the Supreme Court must decide which of two importantly different questions it should address: (1) Is the challenged law unconstitutional? (2) Is the lawmakers’ judgment that the challenged law is constitutional a reasonable judgment? (One can answer both questions in the affirmative.) By focusing on the death penalty, abortion, and same-sex unions, Perry provides illuminating new perspectives not only on moral controversies that implicate one or more constitutionally entrenched human rights, but also on the fundamental question of the Supreme Court’s proper role in adjudicating such controversies.

---

Table of contents :
Cover……Page 1
Half-title……Page 3
Title……Page 5
Copyright……Page 6
Dedication……Page 7
Contents……Page 9
Acknowledgments……Page 11
Introduction: A (Partial) Theory of Judicial Review……Page 13
I. The morality of human rights……Page 21
II. From morality to law……Page 29
III. Why liberal democracies entrench certain human rights laws……Page 35
Addendum: What human rights does the United States Constitution entrench?……Page 42
CHAPTER TWO Constitutionally Entrenched Human Rights, the Supreme Court, and Thayerian Deference……Page 47
CHAPTER THREE Capital Punishment……Page 63
I. Originalism, yes; Scalia, no……Page 64
II. Significantly harsher than necessary?……Page 80
III. Not commonly used?……Page 91
IV. Should the Supreme Court rule that capital punishment is unconstitutional……Page 96
CHAPTER FOUR Same-Sex Unions……Page 105
I. The mandate of equal citizenship……Page 107
II. Do state refusals to recognize same-sex unions violate equal citizenship?……Page 120
CHAPTER FIVE Abortion……Page 143
I. Is it unreasonable to regard the good that bans on pre-viability abortions aim to serve as a genuinely public good?……Page 149
II. Is it unreasonable to think that bans on pre-viability abortions serve the public good in a proportionate fashion?……Page 169
CHAPTER SIX Thayerian Deference Revisited……Page 181
Postscript: Religion as a Basis of Lawmaking? Herein of the Non-establishment of Religion……Page 201
I. The central meaning of the non-establishment norm……Page 206
II. Does the non-establishment norm forbid government to affirm religious premises?……Page 210
III. Does the non-establishment norm, properly understood, ban religion as a basis of lawmaking?……Page 229
Index……Page 241