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Rediscovering Philadelphia

"There is no liberty if the power of judging be not separated from the legislative and executive powers."
—Montesquieu

The theme that unites the short, somewhat disparate eight chapters of this book is the use by the Supreme Court of unenumerated rights—that is, rights beyond those specifically enumerated in the Bill of Rights—to invalidate state laws. The result of this practice, as DeRosa emphasizes at various points, is that "popular control within the states" over matters of rights and even public policy has been diminished: the Court simply imposes its will, through the medium of unenumerated rights, upon the people of the 50 states. The two cases that most clearly illustrate this process, Griswold v. Connecticut (1965) and Roe v. Wade (1973), are among the most notorious in our constitutional history. From the "penumbras" formed by "emanations" of various specified rights, the Court discovered the unenumerated "right of privacy" (Griswold) that subsequently formed the basis for its invalidation of state anti-abortion laws (Roe).

The first chapter provides a summary view of DeRosa's concerns, while each of the subsequent chapters deals with various and more specific aspects of creative jurisprudence, unenumerated rights, and federalism. DeRosa emphasizes...

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