In Reinventing American Jurisprudence: Law through the Lens of Value, George David Miller and Laura Brown unfurl an original approach to value and an imaginative landscape in philosophy of law. Value essentialism identifies value formations such as a sacred cow and scapegoat tandem and the intensification of “oughtness” as it approaches sacred zenith values. Readers learn how Occam’s razor has been responsible for the death of many ideas; how the celebrated Other gains nuance as near and remote; and where a spectral assessment of probability and necessity leads. Analyses of Supreme Court cases grow out in different and exciting directions. Buck was not about eugenics, but another iteration of the value of efficiency and Yo Wick was decided less on law and more on a justice’s finding humanity in Chinese laundry mat proprietors. Lochner involved not an ideological binary but three distinct value schemes. “Separate but equal” was refined as parallelism and exploitative tangents. In Brown, the Fourteenth Amendment took a significant subjective turn. In Heller, the communitarian position of stopping violence before it began could be contrasted with the individualistic position of waiting until you see the whites of their eyes in your bedroom. Citizens United was distilled into the question: was the First Amendment designed to maximize participation or maximize democracy?
George David Miller is retired philosophy professor and president of Before I Read This Poem, a platform from which he has delivered thousands of writing workshops and performance poetry shows over the past three decades.
Part I: Introduction to a New Theory of Law
Chapter 1: The Primacy of Value
Chapter 2: Law Theories through the Lens of Value
Part II: Supreme Court Cases
Chapter 3: Self-Determination v. Efficiency, Buck v. Bell
Chapter 4: Human Being v. Degraded Being, Yo Wick v. Hopkins
Chapter 5: Security of Free Speech v. Wartime National Security, Abrams v. United States
Chapter 6: Partial Personhood v. Property, Dred Scott v. Sandford
Chapter 7: Integration as a Means of Securing Personal Liberty for All v. Segregation as a Means
of Securing White Supremacy and Limiting Personal Freedom, Plessy v. Ferguson
Chapter 8: Liberty Over Paternalism v. Judicious State Intervention Over Exploitative Liberty,
Lochner v. New York
Chapter 9: The Value of Interdependence v. Value of a Private and Independent Economic
Sphere, Wickard v. Filburn
Chapter 10: The Sacred Value of Privacy in Marriage v. Traditionalism, Griswold v. Connecticut
Chapter 11: Malicious Free Speech v. Libel of a Government Official, New York Times Co. v.
Chapter 12: The Subjective Turn of the Fourteenth Amendment vs. Separate but Equal, Brown v.
Board of Education of Topeka
Chapter 13: Collective Safety Net v. Individualistic Self-Defense, District of Columbia v. Heller
Chapter 14: The Absolute Value of the Establishment Clause of the First Amendment v. Value of
Spiritual Heritage, Engel v. Vitale
Chapter 15: The Value of Privacy in the Bedroom vs. the Value of Social Stability, Lawrence v.
Chapter 16: Weaponized Words v. Fruition of Conscience in Action, Brandenburg v. Ohio
Chapter 17: Invidious Discrimination v. the Purity of White Supremacy, Loving v. Virginia
Chapter 18: Health v. Liberty, National Federation of Independent Business v. Sebelius
Chapter 19: Venerated Objects v. Freedom of Speech, Texas v. Johnson
Chapter 20: Functional Judiciary v. National Security, United States v. Nixon
Chapter 21: The First Amendment as a Means to Secure Corporate Dominance v. First
Amendment as a Means to Secure Democracy, Citizens United v. Federal Election
Conclusion: One Hundred Eleven Mic Drop Takeaways, Conversation Starters & Stuff That Can
Startle the Stymied into Writing Creatively
At a time when the U.S. legal system is coming under increased scrutiny over its possible complicity in enabling social inequality, racial injustice, and sexism, this critical analysis of the values underlying the major theories of law could not come at a better time.
This text makes crystal clear how the legal system is not merely a set of norms, but rather highlights the values and value tensions underlying high profile cases and decisions. This is an important contribution for those interested in deepening their knowledge of the philosophy of law.