Constitutional Law: Secondary Sources

This text describes the evolution of political thought from the Declaration of Independence to the ratification of the Constitution. The author discusses the debate over Republicanism.

The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. In Restoring the Lost Constitution, Randy Barnett argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless.

Over the last forty years both modern constitutional scholarship and Supreme Court constitutional doctrine have concentrated on the analysis of rights, while issues of constitutional law related to the structure of government have been largely ignored. The irony of this interpretive emphasis is that the Constitution itself contains relatively little dealing with rights. Rather, it is primarily a blueprint for the establishment of a complex form of federal-democratic structure. This work is the only scholarly attempt to emphasize the central role served by the structural portions of the Constitution. Redish argues that these structural values were designed to provide the foundation in which our rights-based system may flourish, and that judicial abandonment of these structural values threatens the very basis of American political theory.

This volume is an examination of the Constitution and the manner in which the Supreme Court has failed to communicate its opinions to the public in a comprehensible manner.

This classic book on the role of the Supreme Court in our democracy traces the history of the Court, assessing the merits of various decisions along the way. Eminent law professor Alexander Bickel begins with Marbury vs. Madison, which he says gives shaky support to judicial review, and concludes with the school desegregation cases of 1954, which he uses to show the extent and limits of the Court’s power. In this way he accomplishes his stated purpose: “to have the Supreme Court’s exercise of judicial review better understood and supported and more sagaciously used.”

Mark Tushnet challenges hallowed American traditions of judicial review and judicial supremacy, which allow U.S. judges to invalidate "unconstitutional" governmental actions. By examining a wide range of situations involving constitutional rights, Tushnet vigorously encourages us all to take responsibility for protecting our liberties. Guarding them is not the preserve of judges, he maintains, but a commitment of the citizenry to define itself as "We the People of the United States". His clarion call for a new kind of constitutional law is essential reading for constitutional law experts, political scientists, and others interested in how and if the freedoms of the American Republic can survive into the twenty-first century.

This treatise provides a detailed, up-to-date, and comprehensive analysis of American constitutional law. It examines the issues that are studied and litigated today and discusses the origins of judicial review and federal jurisdiction, the sources of national authority, the growth of federal commerce and fiscal powers, and the limits on state laws that burden interstate commerce. It analyzes individual liberties and due process, including freedom of speech and religion, federal powers to enforce the Bill of Rights, and limitations on the jurisdiction of federal courts. Finally, it examines the separation of powers, including the restrictions on the foreign affairs power.

The chief justice of the United States Supreme Court describes the history, evolution, operations, and decision-making procedures of the Court, and examines the relationship of the Court to Congress and the President.

In exploring the neglected art of statutory interpretation, Antonin Scalia urges that judges resist the temptation to use legislative intention and legislative history. In his view, it is incompatible with democratic government to allow the meaning of a statute to be determined by what the judges think the lawgivers meant rather than by what the legislature actually promulgated. Eschewing the judicial law-making that is the essence of common law, judges should interpret statutes and regulations by focusing on the text itself. Scalia then extends this principle to constitutional law. He proposes that we abandon the notion of an ever changing Constitution and pay attention to the Constitution's original meaning. Although not subscribing to the "strict constructionism" that would prevent applying the Constitution to modern circumstances, Scalia emphatically rejects the idea that judges can properly "smuggle" in new rights or deny old rights by using the Due Process Clause, for instance. In fact, such judicial discretion might lead to the destruction of the Bill of Rights if a majority of the judges ever wished to reach that most undesirable of goals. This essay is followed by four commentaries by Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin, who engage Justice Scalia's ideas about judicial interpretation, and the volume concludes with a response by Scalia.

A Yale Law School professor offers a thought-provoking analysis of the history and tenets of the U.S. Constitution, detailing the original intent of the creators of the document, answering questions about the text, and critically assessing the evolution of the Bill of Rights and all other amendments. In America's Constitution, one of this era's most accomplished constitutional law scholars, Akhil Reed Amar, gives the first comprehensive account of one of the world's great political texts. Incisive, entertaining, and occasionally controversial, this "biography" of America's framing document explains not only what the Constitution says but also why the Constitution says it.

Until now legal experts have proposed two basic approaches to the Constitution. The first, "interpretivism," maintains that we should stick as closely as possible to what is explicit in the document itself. The second, predominant in recent academic theorizing, argues that the courts should be guided by what they see as the fundamental values of American society. Mr. Ely demonstrates that both of these approaches are inherently incomplete and inadequate. --from publisher description

Constitutional scholarship has deteriorated into a set of armed camps, with defenders of different theories of judicial review too often talking to their own supporters but not engaging their opponents. This book breaks free of the stalemate and reinvigorates the debate over how the judiciary should interpret the Constitution. Keith Whittington reconsiders the implications of the fundamental legal commitment to faithfully interpret our written Constitution. Making use of arguments drawn from American history, political philosophy, and literary theory, he examines what it means to interpret a written constitution and how the courts should go about that task. He concludes that when interpreting the Constitution, the judiciary should adhere to the discoverable intentions of the Founders.

"Volume Four of Federal Constitutional Law shows how the principles of federalism have shaped many aspects of constitutional law, including the scope of federal powers and both restrictions on and protections for state autonomy, and how federalism has found new traction in the twenty-first century.Like other volumes in the Modular Casebook Series, Federalism Limitations on State and Federal Power provides extensive historical background for the cases and materials, focuses students on the key arguments employed by the Supreme Court, and follows each case with detailed suggested questions that engage students in the reading and prompt robust classroom discussion." -- From the publisher

"This is the fifth volume in the Federal Constitutional Law Modular Casebook Series. This innovative modular concept facilitates focused study of federal constitutional law. Volume 5, The Fourteenth Amendment, includes the following coverage: The State Action Doctrine; The Privileges or Immunities Clause; The Due Process Clause; The Equal Protection Clause." -- From the publisher