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America's Prophets: How Judicial Activism Makes America Great [Hardcover]

by David R. Dow
4.5 out of 5 stars  See all reviews (2 customer reviews)

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Book Description

April 30, 2009 0313377081 978-0313377082 1

America's Prophets: How Judicial Activism Makes America Great fills a major void in the popular literature by providing a thorough definition and historical account of judicial activism and by arguing that it is a method of prophetic adjudication which is essential to preserving American values. Dow confounds the allegation of the Christian right that judicial activism is legally and morally unsound by tracing the roots of American judicial activism to the methods of legal and moral interpretation developed by the prophets of the Hebrew Bible. He claims that Isaiah, Amos, and Jesus are archetypal activist judges and, conversely, that modern activist judges are America's prophets. Dow argues that judicial restraint is a priestly method of adjudication and that it, not judicial activism, is the legally and morally unsound method.

Race and gender discrimination, separation of church and state, privacy rights, and same-sex marriage are all issues that have divided our nation and required judicial intervention. Every time the courts address a hot-button issue and strike down entrenched bias or bigotry, critics accuse the justices of being judicial activists, whose decisions promote their personal biases and flout constitutional principles. This term, despite its widespread currency as a pejorative, has never been rigorously defined. Critics of judicial activism properly point out that when judges overturn laws that enforce popular norms they thwart the will of the majority. But Dow argues that so-called activist judges uphold two other American legal values that are as deeply embedded in American legal culture as majoritarianism: liberty and equality. He challenges the notion that judicial activism is unprincipled, and he provides a vocabulary and historical context for defending progressive decisions.

Editorial Reviews

Book Description

With roots in the biblical prophets, judicial activism is a contemporary method of legal interpretation whereby judges base their decisions not on what they personally believe, but instead on the fundamental American values of liberty and equality.

Product Details

  • Hardcover: 165 pages
  • Publisher: Praeger; 1 edition (April 30, 2009)
  • Language: English
  • ISBN-10: 0313377081
  • ISBN-13: 978-0313377082
  • Product Dimensions: 9.3 x 6.2 x 0.9 inches
  • Shipping Weight: 14.9 ounces (View shipping rates and policies)
  • Average Customer Review: 4.5 out of 5 stars  See all reviews (2 customer reviews)
  • Amazon Best Sellers Rank: #3,332,371 in Books (See Top 100 in Books)

More About the Author

David R. Dow is the Cullen Professor at the University of Houston Law Center, and the Rorschach Visiting Professor of History at Rice University. A graduate of Rice and Yale, Dow's areas of expertise include constitutional law and theory, contract law, and death penalty law. Working with students in his death penalty clinic, Dow represents death row inmates during their state and federal appeals. He is also the founder and director of the Texas Innocence Network.

He lives in Houston and Park City, Utah, with his wife Katya, their son Lincoln, and their dog Franklin.

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1 of 1 people found the following review helpful
4.0 out of 5 stars A short treatise arguing for judicial activism May 8, 2013
By Phred
Back in 2009 when this book was published, and still in print. The term `judicial activism' was code for liberal judges ruling in favor of liberal causes. Now that we have very conservative Supreme Court and the likelihood that it will remain so, this term seems to have lost its sting.

Be this as it may, David R. Dow , Distinguished Professor at the University of Houston Law Center and visiting Professor of History at Rice University lays out a case in favor of judicial activism. He builds his case on a biblical division of legal power. He identifies the biblical judges as the priests who adjudicated disputes. The prophets were those who interpreted the words and by extension the will of God.

He gives the examples first of Rabbi Hillel famous summation of the old testament as being "Thou shalt not do unto others, that which you would not have done to yourself". He then quotes Jesus as having restarted this principle, except in a positive formula "Do unto others as you would have done to you." The special relevancy of these statements is that they encode a directive not to be found in any explicit biblical quotation. That is both formulas represent interpretations rather than strict readings.

He then opines that American Judges have the particular duty of stating when the rule of the majority has, or is likely to become the dictatorship of the majority. The older term he cites is the problem of the "tyranny of the majority". This term is a quote from James Madison's Federalist Paper No 10.

Clearly the importance of these sources is to make the case directly to the so called Christian Right, that judicial activism has both biblical precedence and the support of the founding fathers of the US Constitution.
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0 of 2 people found the following review helpful
...on the impeachment methodology should the "Prophets" fail to argue, rule or hold progressively sufficient to our liking or in such a manner as to cause us to FEEL as if they were being prophetic.
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