Academic

Weinberger on Enforcing the Bill of Rights

By Lawrence Solum

Lael Daniel Weinberger (Idaho Supreme Court) has posted Enforcing the Bill of Rights in the United States (JURISPRUDENCE OF LIBERTY, pp. 93-113, Suri Ratnapala, Gabriël A. Moens, eds., LexisNexis, 2011) on SSRN. Here is the abstract:

Before the American Civil War, very few U.S. Supreme Court cases dealt with the Bill of Rights. It was not until the 20th century that the courts began to deal extensively with the Bill of Rights, and because of the court enforcement of the rights embodied in that document, the Bill of Rights has come to be the best-known part of the United States Constitution. There have been thousands of cases interpreting and applying the Bill of Rights in the 20th century, and there will undoubtedly be thousands more as our era continues to be permeated with ?rights talk.?

This raises two important questions. First, why did Bill of Rights litigation wait a century to really begin to play an important part in American culture? Second, does the upsurge in judicial enforcement of the Bill of Rights indicate a corresponding increase in liberty? This essay examines both of these questions by examining the interplay between personal rights and structural constraints on the federal government throughout American constitutional history.

Full post as published by Legal Theory Blog on January 10, 2011 (boomark / email).