Cover image for Saying what the law is : the constitution in the Supreme Court
Saying what the law is : the constitution in the Supreme Court
Fried, Charles, 1935-
Personal Author:
Publication Information:
Cambridge, Mass. : Harvard University Press, [2004]

Physical Description:
xii, 319 pages ; 24 cm
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KF4550 .F728 2004 Adult Non-Fiction Non-Fiction Area

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In a few thousand words the Constitution sets up the government of the United States and proclaims the basic human and political rights of its people. From the interpretation and elaboration of those words in over 500 volumes of Supreme Court cases comes the constitutional law that structures the United States government and defines the American people's individual relationships to that government. This book fills the need for an account of that law free from legal jargon and clear enough to inform the educated layperson, yet which does not condescend or slight critical nuance, so that its judgements and analyses will engage students, practitioners, judges, and scholars. Taking the reader up to and through such controversial recent US Supreme Court decisions as the Texas sodomy case and the University of Michigan affirmative action case, Charles Fried sets out to make sense of the main topics of constitutional law: the nature of doctrine, federalism, separation of powers, freedom of expression, religion, liberty, and equality. Fried draws on his knowledge as a teacher and scholar, and on his unique experience as a practitioner before the Supreme Court, a former Associate Justice of

Reviews 2

Library Journal Review

One-time prosecutor, judge, and now Constitutional theorist Fried (Harvard) creates a framework for understanding the role of Constitutional doctrine in dictating and guiding the intricate relationships between government and the political and social structures it purports to control. Fried addresses one of the toughest challenges facing the student of federalism: aside from the powers specifically granted by the Constitution to Congress and the President, what becomes of the rest or balance of powers that a government might enjoy? Noting that the states inherited, upon independence, the level of power exercised by the King-in-Parliament over British territories in general, Fried strongly advances the theory that the Constitution was the creation of the states, which transferred some part of their sovereignty to the new national government, rather than an original creation of the sovereign people of the nation as a whole. Backing up this assertion, the author notes, is the trend of recent Supreme Court rulings establishing in doctrines a correlate for the assumed distinct constitutional status of the states. Carefully analyzing these decisions, Fried delineates twin strands of constitutional theory that together comprise the Court's current philosophy regarding the proper balance between the federal and state entities. Required reading for students of Constitutional law and a highly recommended addition to all significant legal collections.-Philip Y. Blue, New York State Supreme Court Criminal Branch Law Lib., First Judicial Dist., New York (c) Copyright 2010. Library Journals LLC, a wholly owned subsidiary of Media Source, Inc. No redistribution permitted.

Choice Review

Fried (law, Harvard) probes the depths of American constitutional law with a judicious mixture of knowledge, wisdom, and common sense. His analysis covers the fundamentals of American constitutionalism including judicial review, federalism, separation of powers, speech, religion, liberty, property, and equality. Fried focuses on the judicial doctrines that have emerged over the years as Supreme Court judges have attempted to maintain constitutional integrity and consistency in a highly diverse society. In tracing the evolution of the federal system, he concentrates on the federal commerce clause balanced by the "counterforce" of state power, the Tenth Amendment, and sovereign immunity. He suggests that First Amendment may best be understood as protecting "freedom of the mind," a limit on governmental power to interfere with one's liberty to think and express one's thoughts, but, he argues, the Court's treatment of the religion clause has been a "jumble of doctrine, conflicting precedents, and uncertain principles." Fried also grapples with the elusive concept--equality--including the controversial attempt of the government to remedy past and present inequalities. In sum, Fried deals forthrightly with the complexities, nuances, contradictions, and formulae that have become vital components of American constitutional jurisprudence. This book is to be read, studied, digested, and reread. ^BSumming Up: Highly recommended. Upper-division undergraduates and above. R. J. Steamer emeritus, University of Massachusetts at Boston

Table of Contents

1 Doctrine
2 Federalism
3 Separation of Powers
4 Speech
5 Religion
6 Liberty and Property
7 Equality
Table of Cases