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Methods of InterpretationHow the Supreme Court Reads the Constitution$
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Lackland H. Bloom Jr

Print publication date: 2009

Print ISBN-13: 9780195377118

Published to Oxford Scholarship Online: September 2009

DOI: 10.1093/acprof:oso/9780195377118.001.0001

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Deriving Doctrine

Deriving Doctrine

Chapter:
(p.257) eight Deriving Doctrine
Source:
Methods of Interpretation
Author(s):

Lackland H. Bloom

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195377118.003.0008

This chapter explains how the Court derives constitutional principle using examples from the areas of freedom of speech, racial discrimination, reapportionment, and abortion. It then uses two examples from the area of the Establishment Clause: the concept of the wall of separation between church and state and the Lemon test to illustrate how the Court transforms broad principle into specific constitutional doctrine. Next, it considers how the Court derives constitutional doctrine using four specific areas for purpose of illustration: seditious speech, strict scrutiny, libel, and school desegregation. Finally, the chapter discusses various sources of constitutional doctrine including precedent, purpose, structure, theory, necessity, and whole cloth.

Keywords:   deriving principle, speech, discrimination, reapportionment, abortion, principle to doctrine, Establishment Clause, doctrine, strict scrutiny, sources of doctrine

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