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A New Introduction to American Constitutionalism$
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Mark A. Graber

Print publication date: 2013

Print ISBN-13: 9780199943883

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199943883.001.0001

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Constitutional Authority

Constitutional Authority

(p.100) 5 Constitutional Authority
A New Introduction to American Constitutionalism

Mark A. Graber

Oxford University Press

Constitutional authority in the United States is a consequence of complex interactions between elected officials, political activists, and unelected justices that more resembles the chaos of the local garage band than the precision of a Mozart symphony. Some version of judicial supremacy has historically been the dominant theory but less often the actual practice. Supreme Court decisions influence official constitutional practice on such matters as crime and punishment, but so the attitudes of the local prosecutor, the availability of defense lawyers, the sympathies of the local juries, and whether the most recent appointments to the federal bench were made by a president determined to appear tough on criminals. This end result is hardly the pristine vision found in most civics books but may reflect the rough balance between fundamental law and popular sovereignty that underlies a functioning constitutional democracy.

Keywords:   Judicial supremacy, Departmentalism, Counter-majoritarian difficulty, Authority, Implementation, Compliance, Judicial activism, Judicial restraint

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