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OverviewWhat is the American rule of law? Is it a paradigm case of the strong constitutionalism concept of the rule of law or has it fallen short of its rule of law ambitions? This open access book traces the promise and paradox of the American rule of law in three interwoven ways. It focuses on explicating the ideals of the American rule of law by asking: how do we interpret its history and the goals of its constitutional framers to see the rule of law ambitions its foundational institutions express? It considers those constitutional institutions as inextricable from the problem of race in the United States and the tensions between the rule of law as a protector of property rights and the rule of law as a restrictor on arbitrary power and a guarantor of legal equality. In that context, it explores the distinctive role of Black liberation movements in developing the American rule of law. Finally, it considers the extent to which the American rule of law is compromised at its frontiers, and the extent that those compromises undermine legal protections Americans enjoy in the interior. It asks how America reflects the legal contradictions of capitalism and empire outside its borders, and the impact of those contradictions on its external goals. The eBook editions of this book are available open access under a CC BY-NC-ND 4.0 licence on www.bloomsburycollections.com. Open access was funded by Northwestern University Pritzker School of Law and the Northwestern Open Access Fund, provided by Northwestern University Libraries. Full Product DetailsAuthor: Paul Gowder (Northwestern University, USA)Publisher: Bloomsbury Publishing PLC Imprint: Hart Publishing Dimensions: Width: 15.60cm , Height: 2.50cm , Length: 23.40cm Weight: 0.454kg ISBN: 9781509954667ISBN 10: 150995466 Pages: 288 Publication Date: 15 June 2023 Audience: College/higher education , Tertiary & Higher Education Format: Paperback Publisher's Status: Active Availability: Manufactured on demand  We will order this item for you from a manufactured on demand supplier. Table of ContentsIntroduction: Is America the Paragon of the Rule of Law? The Methodological Problem: What is the Rule of Law, Anyway? The Black Liberation Rule of Law Where We’re Going 1. Madison’s Theory of General Law versus Property and Slavery The Special Position of Property The Affinity between Republican Property and Liberal Property Republican Property and Slavery Slavery as Lawlessness Slavery as Property Internal Tensions in the Law of Slavery as Property The Impossibility of Holding Slavery within its Bounds Dred Scott as the Triumph of Property Over Personhood Slavery, Land, and Territorial Expansion 2. The Fugitive Slave Acts, Judicial Independence, and the Jury Judicial Independence and the Jury Juries as Popular Legalism Fugitive Slave Act of 1850: The Return of the Vice-Admiralty Court The Rule of Law Debate about Northern Resistance to Slavery The Inevitability of the State of War 3. Reconstruction and the Black Liberation Rule of Law Black Authorship of the Reconstruction Amendments Martin Luther King Jr, Rule of Law Theorist Due Process and Equal Protection Due Process: The Protections of Judicial Procedure Pushing the Bounds of What We Call ‘Property’ The Problem of Substantive Due Process Equal Protection and General Law The Anti-Classification Response to the Problem of Generality Process and Protection Together: The Path Not Taken 4. Turning the Constitution Around: Black Liberation and the Rule of Law in the Last Century Judge Lynch’s Affront to the Rule of Law The Second Liberation Movement: From Anti-Lynching to Criminal Justice From the Black Panthers to the Movement for Black Lives 5. Security and Discretion: The Problem of Executive Power Police as Executives: The Problem of Discretion in Street-Level Criminal Justice Ex Ante Police Discretion: Street-Level Arbitrary Power Ex Post Police Discretion: The Qualified Immunity Doctrine Segregation and Policing: How Property Rights and Local Quasi-Federalism Can Undermine the Rule of Law From Policing to National Security Presidential Power in the National Security State The Schmittian Dilemma 6. The Gavel and the Fist: The Problem of Sovereignty and Borders The Plenary Power The Courts of the Conqueror Expropriation in the Schmittian Judiciary The Plenary Power Doctrine is Indefensible Immigration ‘Court’: Barely Adjudication at All Expedited Removal: For When Executive Adjudication is Still Too Fair The Tendency of Arbitrary Power to Metastasize Throughout the Legal System Immigration Outlawry Harms Citizens Too Immigration Outlawry Corrupts the System as a Whole Lawless Racism: The Challenge to Birthright Citizenship Conclusion: Is there Any Hope for an American Rule of Law? The Washington Consensus: Here Comes Property Again The Crisis of the American Rule of Law: Reflections on Donald Trump The Danger of Legal AlienationReviewsAuthor InformationPaul Gowder is Professor of Law at Northwestern University's Pritzker School of Law, USA. Tab Content 6Author Website:Countries AvailableAll regions |
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