Government & Politics Theses and Dissertations
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Item Culture Warriors Go To Court: The Supreme Court and the Battle for the "Soul" of America(2015) Spivey, Michael; McIntosh, Wayne; Government and Politics; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)ABSTRACT Title of Dissertation: CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE "SOUL" OF AMERICA Michael O. Spivey, Doctor of Philosophy, 2015 Dissertation Directed by: Professor Wayne McIntosh Department of Government and Politics The notion of a "culture war" has become a fixture in the academic writing about current American politics, in the popular press and in the cultural zeitgeist. Theorists have suggested that there is a cultural fault line dividing cultural progressives and religious traditionalists. This fault line, it is argued, stems from a basic epistemological disagreement as to whether there is transcendent "truth." According to James Davidson Hunter, these different worldviews lead to policy polarization and cultural warfare. Hunter goes on to suggest that courts (and especially the Supreme Court) are focal points for this conflict. This work analyzes the nature and scope of battles over culture war issues in the United Supreme Court. It relies on a popular description of key culture war issues: God, guns and gays. The Supreme Court's treatment of each of these issues is analyzed in turn. In addition, the Supreme Court's abortion jurisprudence is also examined. With respect to each issue, key Supreme Court cases are identified. The briefs filed by the parties are then summarized and coded, identifying key "modalities" of arguments and specific arguments themselves. All amicus briefs are similarly analyzed and coded. The key Supreme Court decisions are then analyzed in light of arguments raised by parties and amici. Based upon this analysis, it appears that there is not one culture war but rather an interrelated set of cultural battles. Relatedly, there has been an evolution of cultural warfare over time. Some issues have become largely settled (at least within the Court's jurisprudence; others are on their way to being settled and still others present continuing opportunities for cultural clashes. The work concludes by suggesting that the sexual revolution lies at the heart of cultural warfare. Moreover, cultural battles are over the "meaning" of America, that is, what social values will be protected under law.Item LEGAL ARGUMENT, ISSUE FRAMING, AND THE DEVELOPMENT OF CAMPAIGN FINANCE LAW ON THE SUPREME COURT(2015) Hensley, Jonathan; McIntosh, Wayne; Government and Politics; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)Abstract Title of Dissertation: LEGAL ARGUMENT, ISSUE FRAMING, AND THE DEVELOPMENT OF CAMPAIGN FINANCE LAW ON THE SUPREME COURT Jonathan B. Hensley, Doctor of Philosophy, 2015 Dissertation Directed By: Dr. Wayne McIntosh Department of Government and Politics Supreme Court advocates seek to influence the Supreme Court through the arguments made in briefs filed with the Court. This dissertation examines the extent to which language used in attorneys' briefs is adopted by the Supreme Court, and whether the arguments made by attorneys affect the content and outcome of Court decisions. I focus on the Court's campaign finance jurisprudence, as the focus on a particular area of law allows the tracing of language related to similar issues over time. In Chapter Two, I demonstrate that the Court's campaign finance decisions can be divided into four eras that are distinguishable by the Court's relative deference or skepticism toward legislative determinations regarding campaign finance regulation. Chapter Three examines instances in which justices have changed their minds on important issues and searches for evidence that arguments in briefs influenced these changes, but finds that there is little evidence that these changes can be directly attributed to arguments found in briefs. Chapter Four examines legal argument through issue framing, analyzing the issue frames employed in both court opinions and attorney's briefs. I conclude that the four eras of campaign finance law can also be distinguished by differences in issue framing. I further conclude that advocates can affect the way the Court views an issue by adding new frames at the Supreme Court level that were not present in the lower courts, especially in the transitional cases that mark the beginning of a new era.Item Foundations of Juristocracy(2014) Paik, Sung-Wook; Soltan, Karol E.; Elkin, Stephen L.; Government and Politics; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)Differences in institutional architecture and political culture notwithstanding, constitutional democracies worldwide are increasingly relying on courts for their maintenance, most notably in regards to the settlement of conflicts involving fundamental rights and values. This dissertation explores the foundations of juristocracy and argues that its intellectual roots lies in the proliferation of a depoliticized understanding of democracy that emerged as a reaction to the experience of totalitarianism. By examining the historical, institutional, and ethical shifts that shaped constitutional development after World War II, it reveals how contemporary democracies have accepted the diagnosis that the rise of totalitarian and authoritarian regimes was caused by an inherent flaw within democracy, particularly its inability to counteract subversive movements that harness legitimacy from plebiscitarian methods and mass mobilization. The anxiety towards unconstrained collectivities and majoritarian power has led intellectuals in both the United States and Europe to re-conceptualize democracy as the distribution of fundamental rights, as opposed to the distribution of self-governing power amongst citizens to collectively determine public affairs. As a result of this emerging consensus, the participatory dimension of democratic politics was attenuated in the name of preserving the idea of democracy safeguarded through judicial or quasi-judicial means. Although this conceptual shift has been obscured by its use of familiar jargons from early modern political thought, this dissertation offers a critical inquiry into understanding how the core premises of constitutional democracy has been historically reconstructed in a way that informs the rise of juristocracy across different parts of the world.Item Reconstituting the War Powers: Towards a Deliberative Constitutional System for War(2014) Janow, Jeremy A.; Elkin, Stephen L.; Government and Politics; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)This study of American constitutional theory and practice offers a distinctive perspective on the interminable war powers debate, a view away from formal constitutional settlement and towards a deliberative constitutional politics for war. Contemporary war powers scholarship centers on the question of how the rise of discretionary executive power and receding legislative influence over the use of military force should be constitutionally evaluated and addressed. This dissertation shows that underlying the conventional divide between congressionalist and presidentialist interpretations of the Constitution are competing theories about how such a balance of powers is to be politically constituted that have important implications for the interbranch politics of warmaking. The predominate framing of the war powers debate has been from the vantage point of legal constitutionalism--centering on constitutional interpretation, statutory clarification, and ultimately judicial review to clearly establish the authority over the use of military force. After describing the theoretical promises of the formal entrenchment of the separation of powers, an examination of constitutional practice reveals this approach to be a contemporary construction that has tended to undermine the purposes to which it aspires. The dissertation then turns to consider a more fully political constitutionalism, a conception with roots in the American founding and which has seen a revival in recent scholarly discussions. Political constitutionalism accommodates continual discord over the proper boundaries of institutional authority in war and the inevitability of some executive discretion as inherent and potentially salutary elements of the political order. The analysis shows that the warmaking order that emerges from such a constitutional politics should not entail anything goes, but instead can be judged by the extent the branches engage in recurring interactions that amount to systemic deliberation, a standard drawn from the political form of the constitution itself. This study concludes with a sketch of how processes of legal constitutionalism might be integrated into the deliberative interbranch warmaking politics aspired to by political constitutionalism and a view towards the broader political foundations of a deliberative constitutional system for war.Item WHO IS A PERSON AND WHY? A STUDY OF PERSONHOOD IN THEORY AND THE LAW(2012) Chandler Garcia, Lynne Marie; McIntosh, Wayne; Government and Politics; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)This study concerns what it means to be a person and the role the law plays in bestowing the status of person. The purpose of this dissertation is to further our understanding of how courts in the U.S., and especially the U.S. Supreme Court, have defined "person" as a legal construct within Constitutional law. In order to achieve this, court decisions concerning the personhood of key entities with a claim to personhood are analyzed and compared in order to yield a more meaningful understanding of the word "person." The entities studied include slaves, corporations, fetuses, and higher-order animals. To focus the study, several theoretical dichotomies are presented that unite the scholarship of personhood as it pertains to each of these entities. These include the dichotomy between a human being and person; property and person; and inclusion or exclusion in a community of persons. Each of these entities is then thoroughly examined in terms of the theories of personhood that are applicable to that entity, the particular historical and political circumstances that surround each entity, and finally the court decisions that determined that entity's status as a person. Through careful analysis of court documents, the study tests to see if the legal decisions reflect the dichotomies between person and human being or person and property. Further, these legal decisions are compared in order to determine if the courts have been consistent in the bestowal of personhood. Through a thorough analysis of judicial decisions concerning personhood combined with a theoretical foundation of the interdisciplinary discussions that inform and affect judicial and moral personhood, this study seeks a more concrete answer to the question, "Who is a person and why?"Item The Republic and its Problems: Alexander Hamilton and James Madison on the 18th Century Critique of Republics(2009) Evans, Michael Clinton; McIntosh, Wayne V.; Government and Politics; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)This study offers a new interpretation of the theoretical basis of the political alliance and rupture between Alexander Hamilton and James Madison. The central thesis is that Madison was correct that his and Hamilton's disagreement was rooted in their different orientations toward republican versus monarchical governments. Although for the past century scholars have rejected Madison's claim that Hamilton harbored monarchical principles and intentions, this study argues that the textual record suggests that he did. More specifically, it is demonstrated that there is no evidence that Hamilton had a genuine principled commitment to republican government. Moreover, the evidence does indicate that he always believed America would be better served by emulating the British mixed regime, complete with a hereditary monarch, and that he sought to put the United States on a developmental path toward such a regime. This difference between Hamilton and Madison was based on both disparate political principles and differences in their prudential judgments about the possibility that the Americans could overcome what this study calls the "18th century critique of republics." This powerful tenet of Enlightenment political science claimed that two sociopolitical processes tended to transform republics into despotic or, at best, limited monarchical regimes. One of these processes, "the republican violent death," was thought to naturally lead republics into anarchy and eventually monarchy or despotism. The other process, "the republican security dilemma," consisted of several pressures placed on regimes by their external security environment to adopt policies and establish institutions that undermined the domestic requisites for republican liberty. The most salient implication of the 18th century critique of republics was that the British balanced constitution presented the best model for durable liberty under modern conditions. This study argues that Madison and Hamilton were united in taking this critique seriously and that they both believed the two processes could have led to despotic regimes throughout North America if something had not been done to curb what they perceived as the excessive democracy and sovereign pretensions of the State governments. Their principal prudential difference was that Madison, unlike Hamilton, believed he had found republican cures for these republican diseases.Item Human Rights or American Privileges?: The Supreme Court's Evolving Use of Universal Reasoning(2007-08-03) Simon, Stephen A; McIntosh, Wayne V; Government and Politics; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)Rights interpretation is intimately bound up with questions about the basis of rights. Within the context of American constitutionalism, questions about the universality of rights are especially pressing. Does constitutional interpretation properly involve reasoning from universalistic principles, or should it be limited to particularly American preferences, traditions, texts, and practices? This study examines how the Supreme Court justices have approached this question. To the extent that public law studies consider the Court's use of universalistic reasoning, they typically fall under the rubric of "natural law" jurisprudence in a discrete issue area or time period. "Natural law" often carries associations, such as an emphasis on property rights, that may unnecessarily constrict the field of investigation. This dissertation is not aimed at a pre-determined version of universalistic jurisprudence, or at a single time period or issue area. Rather, it shows that universalistic reasoning has played an important role in the Court's rights jurisprudence across a wide range of issue areas from the Court's earliest rights decisions to the present day. With an expanded focus, this study demonstrates patterns and shifts in the use of universalistic reasoning, and axes of disagreement between the justices, that transcend boundaries between issue areas. By exploring the Court's jurisprudence through the prism of questions about the grounding of rights, this dissertation sheds light both on constitutional law and on fundamental tensions between universalistic and particularistic bases of rights.Item PARTY WITH THE COURT: POLITICAL PARTIES AND THE NATIONAL JUDICIARY IN THE CREATION, MAINTENANCE, AND TRANSFORMATION OF POLITICAL ORDERS(2005-07-26) Hays, Bradley David; Graber, Mark A.; Government and Politics; Digital Repository at the University of Maryland; University of Maryland (College Park, Md.)In the United States, the national judiciary plays a vital role in the creation, maintenance, and transformation of political orders. Political parties, the institutions primarily responsible for the operation of a political order, tend to be large and heterogeneous. This heterogeneity creates disjunction within the party and threatens to undermine partisan unity. In order to hold power over an extended period of time, parties-in-power must diffuse their intra-party tension. This dissertation explores the phenomena of parties using courts to diffuse intra-party tension by displacing highly divisive issues onto the national judiciary. This exploration reveals a pattern whereby the dominant wing of the party-in-power consistently secures its preferences through the courts to the detriment of minority wing preferences. To elucidate this pattern, three different political orders are examined. First, the Republican political order is examined to reveal how the dominant, conservative wing of the Party used the courts to protect against invasive regulatory schemes favored by the progressive, minority wing of the Party. Second, an examination of the New Deal/Great Society Democratic political order reveals the role the courts played in enabling the liberal, dominant wing of the Party to circumvent conservative, minority wing obstruction of civil rights and how the courts helped liberal Democrats woo African American voters so as to transform and liberalize the Democratic Party. Third, the period of divided government is detailed to reveal how the dominant, economically conservative wing of the Republican Party uses the Supreme Court to manage issues highly salient to the socially conservative minority wing. Judicial administration of religion in education, homosexual rights, and abortion resulted in the Republican Party eschewing those issues from its legislative agenda and, simultaneously, resulted in center-left policy consistent with dominant wing preferences. By judicializing social issues, the Republican Party created greater Party unity than what would otherwise be possible, which enabled it to rise to power at the turn of the 21st Century. The party-court dynamic has implications for judicial power, party government, and constitutional theory and each are explored in the conclusion.