دانلود کتاب سابقه قانون اساسی در استدلال دادگاه عالی ایالات متحده

Chief Justice John Marshall famously declared in Marbury v. Madison that “It is emphatically the province and duty of the judicial department to say what the law is.”1 But what if the Court got it wrong? What if, after declaring in one case what the law means, especially when it comes to an interpretation of the US Constitution, the current Court, or a later one, decided that the original decision was no longer correct. Should it continue to accept the original decision as binding, or should it overrule it and declare a new rule? Addressing the question of when previous decisions are precedent—that is, binding and should be followed, and when and under what circumstances they should no longer be viewed as such—is among the most central questions of American law and legal reasoning. The enigma of constitutional precedent is also central to major disputes in American politics. Consider the case of Roe v. Wade,2 the landmark US Supreme Court decision declaring that women have a constitutionally protected right to terminate their pregnancies, especially during the first two trimesters. From practically the day it was decided it was a controversial decision, producing a political and legal backlash among conservative religious followers and scholars. For the former, Roe went against their beliefs that “life began at conception” or that the fetus was a person deserving legal protection. For the latter, the Court’s decision was an example of legislating from the branch, grounding abortion rights not in any justifiable legal principle or argument but simply in politics. Roe launched a massive political and legal countermobilization to overturn it; the detailed story is not able to be told here.