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Conservative & Libertarian Legal Scholarship: Constitutional Law

V. Constitutional Law
March 08, 1996

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V. Constitutional Law

Note: The Heritage Foundation has published a comprehensive Guide to the Constitution (2005), which provides a line-by-line analysis of the complete Constitution by more than 100 legal scholars, including notes on further reading. (Select sections of the Guide are available for download here: http://www.heritage.org/about/bookstore/constitutionguide.cfm).  The Guide is so useful and concise a resource for understanding conservative and libertarian constitutional thinking that we have cited relevant pages throughout this section, in addition to other articles.

The Founding

Original Sources

THE  FEDERALIST. The versions edited respectively by Clinton Rossiter and Jacob E. Cooke, along with their introductions, are the best. THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (Max Farrand, ed., 1911) (3 vols.). Professor Farrand scrupulously collected the notes kept at the Constitutional Convention, starting, of course, with James Madison’s.  JONATHAN ELLIOTT, DEBATES, RESOLUTIONS, AND OTHER PROCEEDINGS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (1845, republished in 1937 & 1968). The views of the state ratifying conventions are of great importance, and this is the indispensable collection. THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION (Merrill Johnson, ed., 1976) (16 vols.) is 150 years more recent and more comprehensive, but it is only partly completed.

The Anti-Federalist Papers in BERNARD BAILYN, DEBATES ON THE CONSTITUTION (1993). Although their opposition to ratifying the Constitution failed, the Anti-Federalists’ ideas were—and remain—influential. See also THE ANTI-FEDERALIST (Herbert Storing, ed., 1985).

Letters of Pacificus. Hamilton’s essays under this pseudonym defended President Washington’s Neutrality Proclamation of 1793. They contain an important statement of the President’s foreign policy powers and duties. Some of the essays are collected in, for example, SELECTED WRITINGS AND SPEECHES OF ALEXANDER HAMILTON (Morton J. Frisch, ed., 1985) at 396-407.  All are available in PAPERS OF ALEXANDER HAMILTON (Harold C. Syrett, ed., 1961-87) (27 vols.).

AMERICAN POLITICAL WRITING DURING THE FOUNDING ERA, 1760-1805 (Charles S. Hyneman & Donald S. Lutz, eds., 1983) (2 vols.). This is an interesting compilation of essays, articles, speeches, sermons, and other works on a wide range of political subjects by a variety of authors-some famous, others obscure, anonymous, or pseudonymous. The political thought of the time was also reflected in the contemporaneous laws, some of the most important of which are collected in BENJAMIN PERLEY POORE, THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE UNITED STATES (1878) (2 vols.).

WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND (St. George Tucker, ed., 1803). Some slightly earlier versions of this classic work were among the leading legal reference works when the Framers studied law. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (1833, reprinted with an introduction by Ronald D. Rotunda and John E. Nowak in 1987). Justice Story cannot be considered a Founder (he was born in 1779), but his treatise—first published in 1833—is among the earliest and most influential in American constitutional law. As Professors Rotunda and Nowak say at the beginning of their interesting introduction to the one-volume edition (the original version had three volumes), “Joseph Story lived at an ideal time and under ideal circumstances to reflect upon the nature of our constitutional system of government.”

JACK P. GREENE, COLONIES TO NATION, A DOCUMENTARY HISTORY OF THE AMERICAN REVOLUTION (1975).  A collection of historical documents ranging from government papers and pamphlets to diaries and personal letters.

The Framers relied on the work of many political philosophers in their own thinking and writing, including: Aristotle (Politics) http://classics.mit.edu/Aristotle/politics.html, Machiavelli (Discourses) http://www.constitution.org/mac/disclivy_.htm, Hobbes (Leviathan) http://oregonstate.edu/instruct/phl302/texts/hobbes/leviathan-contents.html, Locke (Two Treatises of Government, An Essay Concerning Human Understanding) http://onlinebooks.library.upenn.edu/webbin/book/search?amode=start&author=Locke, John, Montesquieu (The Spirit of the Laws) http://www.constitution.org/cm/sol.htm, Hume (Essays, A Treatise of Human Nature) http://www.class.uidaho.edu/mickelsen/ToC/hume treatise ToC.htm,  and Adam Smith (The Wealth of Nations, The Theory of Moral Sentiments) http://www.bibliomania.com/NonFiction/Smith/Wealth/index.html.

Internet resources: All four of the following sites offer on-line versions of the Declaration of Independence, the U.S. Constitution, and the Federalist Papers -- and a lot more.
“Founding.com” sponsored by the Claremont Institute, http://www.founding.com  (especially the “Founders Library”), “Constitution Society,” http://www.constitution.org  (especially the “Basic Principles,” “Founding Documents,” and “Liberty Library of Constitutional Classics” pages), “Avalon Project at the Yale Law School,” http://www.yale.edu/lawweb/avalon/avalon.htm  (“Documents in Law, History, and Government”), and the University of Oklahoma Law Center, “A Chronology of U.S. Historical Documents,” http://www.law.ou.edu/hist

Secondary Sources

The Legacy of the Federalist Papers, 16 HARV. J.L. & PUB. POL’Y 1 (1993). This Federalist Society symposium features panels on The Federalist’s philosophical foundations; its vision of representative democracy, liberty, and constitutional structure; and its relevance to current debates regarding federalism, term limits, and judicial overreaching. There is also much commentary on the Anti-Federalists. Participants included James Buckley, Charles Cooper, David Epstein, Richard Epstein, Mary Ann Glendon, Lino Graglia, William Kristol, and Geoffrey Miller. The essay on the Tenth Amendment by Pete DuPont—which follows the published proceedings of the symposium—also is worth reading.

GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787 (1969). This classic work of intellectual history discusses how, between the Declaration of Independence and the framing of the Constitution, American political thought was fundamentally transformed.

HERBERT STORING, WHAT THE ANTI-FEDERALISTS WERE FOR (1981). The Anti-Federalists, Storing reminds us, were our Founding Fathers, too; their debate with the Federalists will never be finally resolved, and it was largely through their efforts that the Bill of Rights was added to the Constitution. Storing explains their principles and arguments, many of which are just as applicable today.

DAVID F. EPSTEIN, THE POLITICAL THEORY OF THE FEDERALIST (1984). In the Straussian tradition, this is a close and deep reading of a classic political text. Epstein also discusses some of the contributions of Hobbes, Locke, Hume, Montesquieu, and Adam Smith to the Framers’ thought.

THOMAS L. PANGLE, THE SPIRIT OF MODERN REPUBLICANISM: THE MORAL VISION OF THE AMERICAN FOUNDERS AND THE PHILOSOPHY OF LOCKE (1988). Here is another Straussian book centered on The Federalist, but Professor Pangle also considers other statements by Hamilton, Madison, and Jay, as well as the views of other Founders, especially Franklin, Jefferson, and Wilson. As the title suggests, he concludes that the works of John Locke greatly illuminate the Framers’ vision.

HARVEY C. MANSFIELD, JR., AMERICA’S CONSTITUTIONAL SOUL (1991). Yet another Straussian, Professor Mansfield provides in his book a collection of essays all loosely related to “set[ting] forth a constitutional view of American politics.” Four focus on federal elections in the 1980s; others on affirmative action, religion, and separation of powers, among other issues. The last part is devoted to “constitutional forms.” As Professor Mansfield concludes in his prolegomenon, “Forms matter: let that suffice for a preface.”

Epstein, Pangle, and Mansfield, as well as other distinguished scholars, contribute essays to CONFRONTING THE CONSTITUTION (Allan Bloom, ed., 1990), an impressive collection published by the American Enterprise Institute on “the challenge to Locke, Montesquieu, Jefferson, and the Federalists from utilitarianism, historicism, Marxism, Freudianism, pragmatism, [and] existentialism . . . .”

MARTIN DIAMOND, AS FAR AS REPUBLICAN PRINCIPLES WILL ADMIT (1992). These essays, collected and edited by William A. Schambra after Professor Diamond’s death, focus primarily on The Federalist and the framing. The essays are grouped by themes, which include “Foundations: The Democratic Republic” and “Decentralist Federalism and Republican Virtue.”

FORREST MCDONALD, NOVUS ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF THE CONSTITUTION (1985). Professor McDonald is one of our greatest historians. This is his (entirely successful) undertaking “to make a reasonably comprehensive survey of the complex body of political thought (including history and law and political economy) that went into the framing of the Constitution . . . .”

THURSTON GREENE, THE LANGUAGE OF THE CONSTITUTION: A SOURCEBOOK AND GUIDE TO THE IDEAS, TERMS, AND VOCABULARY USED BY THE FRAMERS OF THE UNITED STATES CONSTITUTION (1991). As the preface says, this ingenious book takes the words of the original Constitution and the Bill of Rights and provides “an alphabetical index to contemporaneous and antecedent sources expanded to such an extent that a lexicographer could use them to create a dictionary, without going further afield.” In other words, it tells what the Constitution’s words commonly meant at the time of the Founding.

DON E. FEHRENBACHER, THE SLAVEHOLDING REPUBLIC: AN ACCOUNT OF THE UNITED STATES GOVERNMENT’S RELATIONS TO SLAVERY (2001).  An argument that the U.S. Constitution is not a pro-slavery document, despite later policies supporting the institution.

JOHN E. NOVAK AND RONALD D. ROTUNDA, PRINCIPLES OF CONSTITUTIONAL LAW (2004).  A constitutional treatise providing a guide as to how judges and practitioners apply constitutional principles in the real world.

For additional reading see Heritage Guide at 446-447.

Interpretive Theory

THE GREAT DEBATE: INTERPRETING OUR WRITTEN CONSTITUTION (1986); WHO SPEAKS FOR THE CONSTITUTION? THE DEBATE OVER INTERPRETIVE AUTHORITY (1992). These two monographs are handy compilations by the Federalist Society of the thoughts of various prominent experts on two of the most fundamental questions in constitutional law. The Great Debate discusses whether the Constitution ought to be interpreted according to its original meaning or, instead, some other principle or set of principles. Who Speaks for the Constitution? considers how the branches of the federal government ought to resolve their inevitable disagreements over constitutional meaning and application. On this issue, see also JOHN AGRESTO, THE SUPREME COURT AND CONSTITUTIONAL DEMOCRACY (1984). The first monograph collects speeches by President Reagan, Robert Bork, Edwin Meese, and Justices Brennan and Stevens; the second includes twenty works from the Founding to the present day.

JOHN HART ELY, DEMOCRACY AND DISTRUST (1980).  Ely argues that the constitution should be interpreted so as to reinforce democratic processes and popular self-government, by ensuring equal representation in the political branches, and that the Constitution’s unenumerated rights (such as the 9th Amendment or the Privileges and Immunities clause) are procedural, not substantive, and thus protect only rights to democratic processes.

KEITH WHITTINGTON, CONSTITUTIONAL INTERPRETATION (2001) and CONSTITUTIONAL CONSTRUCTION : DIVIDED POWERS AND CONSTITUTIONAL MEANING (1999).  Two excellent books on the constitution by one of the field’s most prominent proponents of original intent: the theory that the intent of the author of words or language determines the meaning of those words.  For another seminal defense of original intent see Richard S. Kay, Adherence to Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NW. L. REV. 226 (1988).

Lawrence B. Solum, Semantic Originalism at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1120244. Professor Solum is a prominent adherent to the original public meaning theory of constitutional interpretation, according to which the text of the Constitution ought to be interpreted as it would have been understood by a competent speaker of the language at the time of its enactment, as opposed to the intention of the author himself (or themselves).  See also RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY (2004); Gary Lawson & Guy Seidman, Originalism as Legal Enterprise, 23 CONST. COMMENT. 47, 64 (2006).

RANDY BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY (2003).  Professor Barnett argues that courts, especially since the 1930’s, have been misconstruing the Constitution to eliminate the parts that protect individuals from government power.  In this clear, engaging book, Barnett establishes the original meaning of these lost clauses and argues for a “presumption of liberty” in constitutional interpretation, to give the benefit of the doubt to citizens when laws restrict their exercises of liberty.

John O. McGinnis & Michael B. Rappaport, The Desirable Constitution and the Case for Originalism, 98 Geo. L. J. __ (2010).  An argument that originalist interpretation of constitutional provisions is more likely to yield substantively superior consequences, because the strict supermajority under which the clauses were originally enacted was likely to have resulted in the most desirable provisions.   

Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENTARY 291 (2007).  Professor Balkin argues that Constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text, but not to original expected application of those rules to the document by interpreters.

DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT (1990) (2 vols.). Professor Currie read every constitutional decision issued by the Supreme Court and provides an evaluation from a lawyer’s perspective. Professor Currie’s THE CONSTITUTION OF THE UNITED STATES: A PRIMER FOR THE PEOPLE (1988) is only 88 pages of text, but also very good.

ALEXANDER M. BICKEL, MORALITY OF CONSENT (1975). When Alexander Bickel, a professor at Yale Law School, died in 1974, he was eulogized by George Will as “the keenest public philosopher of our time” and by Robert Bork as a friend who “can be called, without hesitation or embarrassment, a great man.” He became more conservative over the course of his distinguished and too brief career, and The Morality of Consent, based on a series of lectures at Yale the year before he died and containing the core of his still-developing political and legal philosophy, is well worth reading. Professor Bickel’s first book was the classic THE LEAST DANGEROUS BRANCH (1962).

WALTER BERNS, TAKING THE CONSTITUTION SERIOUSLY (1987). Professor Berns is one of our foremost constitutional scholars, and this book-written for the Constitution’s bicentennial-is, Dr. Berns says, “an explanation of the Constitution by reference to the Declaration of Independence, the first of our founding documents.” Needless to say, it contains an impressive wealth of historical and constitutional scholarship.

STEPHEN B. PRESSER, RECAPTURING THE CONSTITUTION: RACE, RELIGION, AND ABORTION RECONSIDERED (1994). This wide-ranging book addresses the connections between religion, morality, and law, and advocates a more active role for natural law in legal reasoning. Professor Presser proposes three constitutional amendments-authorizing school prayer, requiring government “colorblindness,” and returning the abortion issue to the states-and suggests that the Supreme Court be reduced to five, six, or seven Justices.

THE CONSTITUTION OF THE UNITED STATES OF AMERICA (Edward S. Corwin, ed., 1953). This “annotated Constitution” is a treasure trove of information about the Constitution and the Supreme Court cases interpreting it. The later, post-Corwin editions are still useful, but are less objective. THOMAS M. COOLEY, CONSTITUTIONAL LIMITATIONS (Legal Classics Lib. ed. 1987). This 1866 classic, by a leading scholar on state constitutional law, reminds us that this area is an important one for those who take federalism seriously.

Jonathan R. Macey, Competing Economic Views of the Constitution, 56 GEO. WASH. L. REV. 50 (1987). Professor Macey is a prolific writer on economics-related legal issues. In this article, he uses a “public choice” analysis to “argue that the Constitution is a profoundly economic document in the most fundamental sense,” but that its purpose was to ensure that special-interest attempts at wealth transfers were thwarted, not facilitated. This article is part of a seminar on “The Constitution as an Economic Document,” which also included papers by Richard Epstein and Richard Posner.

ANTONIN SCALIA, A MATTER OF INTERPRETATION (1998).  Justice Scalia’s famous explication of his text-based mode of statutory interpretation, which he extends and applies to constitutional interpretation.

Separation of Powers

Douglas Ginsburg, Legislative Vesting Clause, Heritage Guide at 46 (available at http://www.heritage.org/About/Bookstore/upload/85015_1.pdf)

David Engdahl, Necessary and Proper Clause, Heritage Guide at 146.

Douglas Cox, Inferior Officers, Heritage Guide at 213.

The Presidency and Congress: Constitutionally Separated and Shared Powers, 68 WASH. U. L.Q. 485 (1990). This Federalist Society symposium included panels on agency autonomy and the unitary executive, presidential lawmaking powers, congressional control of the administration of government, the appropriations power and the Necessary and Proper Clause, and the role of the courts in separation of powers disputes. Participants included William Barr, Griffin Bell, Robert Bork, Stephen Carter, Richard Cheney, Gordon Crovitz, Frank Easterbrook, Terry Eastland, Boyden Gray, Geoffrey Miller, David Schoenbrod, Laurence Silberman, and Richard Thornburgh.

Geoffrey P. Miller, Independent Agencies, 1986 S. CT. REV. 41. Are independent agencies constitutional?  Professor Miller concludes that they are not: “Congress may not constitutionally deny the President the power to remove a policy-making official who has refused an order of the President to take an action within the officer’s statutory authority.” Thus, “[t]he independent agency is a constitutional sport, an anomalous institution created without regard to the basic principle of separation of powers upon which our government was founded.” He reaches this conclusion by painstakingly but incisively considering arguments pro and con from constitutional text and structure, history, function, prescription, the practical effects of declaring independent agencies unconstitutional, and case law.

Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231 (1994). This article begins, “The post-New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution.” After this equivocal start, Professor Lawson explains why the administrative state violates principles of separation of powers, among other things, and sadly concludes that “the seemingly irrevocable entrenchment of the post-New Deal structure of national governance raises serious doubts about the utility of constitutional discourse.”

Steven Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153 (1992). This article explores the relationship between the Article II “unitary executive” and the Article III “jurisdiction stripping” debates. It concludes that theories of broad congressional power to restrict federal court jurisdiction strongly suggest limited congressional power to restructure the executive, and that theories of limited congressional jurisdiction-stripping power compel a unitary executive under Article II.

Lee S. Liberman, Morrison v. Olson: A Formalistic Perspective on Why the Court Was Wrong, 38 AM. U. L. REV. 313 (1989). This article argues that Morrison can be justified on neither “functionalist” nor “formalist” grounds. The author provides a very useful summary of competing theories respecting the scope of separation of powers principles.

Michael J. Gerhardt, Toward a Comprehensive Understanding of the Federal Appointments Process, 21 HARV. J.L. & PUB. POL’Y 479 (1998).  Professor Gerhardt argues that the confirmation process serves also as an important forum for dialogue between the President and the Senate on constitutional and policy matters related to the nominations of particular candidates.

Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 STAN. L. REV. 1209 (2010).  In this groundbreaking article, Professor Rosenkranz proposes a new mode of constitutional analysis.  Just as the Constitution prohibits not objects but actions--and just as actions require actors--so every constitutional inquiry, Rosenkranz argues, should first ask "who" violated the Constitution and "when" the violation took place.  The answers to these questions, he contends, dictate the proper structure of judicial review, which in turn informs the scope of substantive rights and powers in dispute.

Nicholas Quinn Rosenkranz, The Objects of the Constitution, 63 STAN. L. REV. 1005 (2011).  This sequel continues the analysis begun in The Subjects of the Constitution.  Although judges often describe "statutes" as violating the Constitution, the true "violator," Professor Rosenkranz notes, is not the law itself but rather the legislature that passed it or the executive who applied it--and review of executive action proceeds differently from review of legislative action.  Identifying the proper actors or "subjects," Rosenkranz explains, enables us to discern the corresponding "objects" in the Bill of Rights and other provisions of the Constitution.  Taken together, these subjects and objects shed new light on the structure of the Constitution.

Federalism

Charles J. Cooper, Reserved Powers of the States, Heritage Guide at 371.

A Symposium on Federalism, 6 HARV. J.L. & PUB. POL’Y 1 (1982). This Federalist Society symposium includes papers by Paul Bator, Walter Berns, Michael McConnell, John Noonan, Theodore Olson, Richard Posner, Antonin Scalia, Ralph Winter, and many others.

Reinventing Self-Government: Can We Still Have Limits on National Power?, 4 CORNELL J.L. & PUB. POL’Y 415 (1995). As its title suggests, this Federalist Society symposium was less about federalism per se, as it is now usually and narrowly understood, and more about limiting the federal government to its enumerated powers. Panels included “National Power and Health Care,” “Limits on National Power and Unconstitutional Conditions,” “The Federal Judiciary and Self-Government,” and “National Power and Crime.” Participants included George Allen, Richard Armey, Frank Easterbrook, Richard Epstein, Alan Keyes, Charles Murray, William Van Alstyne, and Malcolm Wallop.

RAOUL BERGER, FEDERALISM: THE FOUNDERS’ DESIGN (1987). This short book (192 pages of text, heavily footnoted) addresses much more than just federalism, narrowly understood: it includes much on the Framers’ desire for a limited federal government, objections to judicial overreaching, imperatives of originalism, and other conservative themes. For a conservative critique of the book, see Michael W. McConnell, Federalism: Evaluating the Founders’ Design, 54 U. CHI. L. REV. 1484 (1987).

A NATION OF STATES: ESSAYS ON THE AMERICAN FEDERAL SYSTEM (Robert A. Goldwin, ed., 1974). This impressive collection of essays provides some interesting perspectives on federalism. Contributors include Martin Diamond (“What the Framers Meant by Federalism”), Russell Kirk (“The Prospects for Territorial Democracy in America”), Herbert J. Storing (“The Problem of Big Government”), and Walter Berns (“The Meaning of the Tenth Amendment”). John M. Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, 49 A.B.A. J. 943 (1963), and The Bill of Rights and the Constitution, 50 A.B.A. J. 918 (1964). These two speeches by Justice Harlan discuss the importance of federalism as a guardian of individual rights.

Henry M. Hart, Jr., The Relations between State and Federal Law, 54 COLUM. L. REV. 489 (1954). Here is the blueprint for Hart and Wechsler’s influential casebook, FEDERAL COURTS AND THE FEDERAL SYSTEM (3d ed. 1988), discussing federalism at the legal and technical level. Nearby in the same law review volume is the similarly influential and brilliant (but heterodox) article by Hart’s partner, Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954). In Wechsler’s view, the role of the states in our constitutional structure is necessarily powerful, and the Supreme Court “is on weakest ground when it opposes its interpretation of the Constitution to that of Congress in the interest of the states, whose representatives control the legislative process and, by hypothesis, have broadly acquiesced in sanctioning the challenged Act of Congress.” This approach is strongly criticized in William W. Van Alstyne, Comment, The Second Death of Federalism, 83 MICH. L. REV. 1709 (1985).

Charles J. Cooper, The Demise of Federalism, 20 URB. LAW. 239 (1988). This article describes the “nationalization of state sovereignty” by Congress and the President, aided and abetted by the federal judiciary. It provides a comprehensive accounting of the doctrines used or abused to achieve this end, with an emphasis on Supreme Court decisions.

Nicholas Quinn Rosenkranz, The Objects of the Constitution, 63 STAN. L. REV. 1005 (2011).  This sequel continues the analysis begun in The Subjects of the Constitution.  Although judges often describe "statutes" as violating the Constitution, the true "violator," Professor Rosenkranz notes, is not the law itself but rather the legislature that passed it or the executive who applied it--and review of executive action proceeds differently from review of legislative action.  Identifying the proper actors or "subjects," Rosenkranz explains, enables us to discern the corresponding "objects" in the Bill of Rights and other provisions of the Constitution.  Taken together, these subjects and objects shed new light on the structure of the Constitution.

Commerce Clause

David E. Forte, Commerce Among the States, Heritage Guide at 101.

Richard A. Epstein, The Proper Scope of the Commerce Power, 73 VA. L. REV. 1387 (1987). Professor Epstein maintains that the text, structure, and history of the Commerce Clause cannot be squared with what the courts have done with it, especially the expansive construction of the Clause accepted by the New Deal Supreme Court. This article appeared to be hopelessly idealistic when written, but the recent decision by the Court in United States v. Lopez-and especially Justice Thomas’s concurrence in that case-make Professor Epstein’s arguments less quixotic. See also Steven G. Calabresi, A Government of Limited and Enumerated Powers: In Defense of United States v. Lopez, 94 MICH. L. REV. 801 (1995). Conversely, Professor Epstein discusses federalism as a check on the monopoly power of state and local governments in Exit Rights under Federalism, 55 LAW & CONTEMP. PROBS. 147 (1992). From the standpoint of intellectual history, an interesting book on Commerce Clause jurisprudence is EDWARD S. CORWIN, COMMERCE POWER VERSUS STATES RIGHTS (1962), written in 1936.

Martin H. Redish & Shane V. Nugent, The Dormant Commerce Clause and the Constitutional Balance of Federalism, 1987 DUKE L.J. 569. Federal courts have argued that the Commerce Clause, by empowering Congress to regulate interstate commerce, also prohibits states from passing laws which “burden” interstate commerce. This article argues that there is no textual basis for this “dormant Commerce Clause” doctrine, that its nontextual rationales are also flawed, that the doctrine actually undermines the Constitution’s carefully structured federal-state balance, and that a text-based jurisprudence could deal effectively with state laws that discriminate against out-of-state commerce.

Michael DeBow, Codifying the Dormant Commerce Clause, 1995 PUB. INTEREST L. REV. 69. After reviewing the state of the Supreme Court’s jurisprudence on the dormant Commerce Clause, and briefly recounting why many commentators, most prominently Justice Scalia, have concluded that this case law is intellectually bankrupt, Professor DeBow proposes a simple solution: Congress should use its affirmative power under the Commerce Clause to codify the holdings that make policy sense (principally those that prohibit any state from discriminating against out-of-state business), and overturn those holdings that do not.

BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION (1998).  Cushman argues that the shift in commerce clause doctrine effected by the New Deal Court was less the result of external political pressures than the product of doctrinal development.

Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. CHI. L. REV. 101 (2001).  Professor Barnett conducts a survey of all uses of the word “commerce” in the Constitutional Convention, ratification debates, and Federalist Papers and finds no evidence that such usage supports a broad reading of the commerce clause as permitting Congress to regulate “any gainful activity,” in contrast to (as Justice Thomas argues) merely the trade and exchange of goods between the states and transportation for this purpose.  See also Randy E. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 ARK. L. REV. 847 (2003).

Brannon P. Denning, Why the Privileges and Immunities Clause of Article IV Cannot Replace the Dormant Commerce Clause Doctrine, 88 MINN. L. REV. 384 (2003).  Professor Denning argues that the substitution of the Privileges and Immunities Clause for the dormant Commerce Clause (DCCD), as critics of the latter have urged, would sacrifice substantial protection for interstate commerce against state discrimination,  because the Privileges and Immunities Clause does not apply to corporations and would not invalidate facially-neutral state statutes that nevertheless discriminate in their effects, and that the unavailability, under the Privileges and Immunities Clause, of certain exceptions to the DCCD would limit states and Congress to a greater degree than does the DCCD.

Role of the Judiciary

Article III, Heritage Guide at 231-266.  Containing analyses of all Article III clauses by Robert J. Pushaw, Jr., Bradley C.S. Watson, Jonathan Turley, Loren Smith, Gary Lawson, Arthur Hellman, Dennis Arrow, David Forte, Paul Rosenzweig, Ernest A. Young, Terence Pell, John Eastman, Paul Verkuil, Andrew Gold, and Rachel E. Barkow.

Judicial Decisionmaking: The Role of Text, Precedent, and the Rule of Law, 17 HARV. J.L. & PUB. POL’Y 1 (1994). This Federalist Society symposium presented panels on “The Enterprise of Judging,” “Stare Decisis and Constitutional Meaning,” “Text and History in Statutory Construction,” and “Non-Legal Theory in Judicial Decisionmaking,” as well as a roundtable on “The Supreme Court as a Political Institution.” Twenty papers were presented, by, among others, Lillian BeVier, Charles Fried, William Kristol, Gary Lawson, Raymond Randolph, Martin Shapiro, and Stephen Williams.

ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1990). This book is divided into three parts, each valuable. The first recounts the history of judicial overreaching; the second critiques the leading theories of constitutional interpretation; and the third is a memoir of Judge Bork’s nomination to the Supreme Court. None of the three parts has a happy ending.

LOUIS LUSKY, BY WHAT RIGHT: A COMMENT ON THE SUPREME COURT’S POWER TO REVISE THE CONSTITUTION (1975). This underread classic was written by one of Justice Stone’s former clerks, who probably worked on the well-known footnote 4 in Carolene Products. In this book, however, he repudiates judicial overreaching. (For an entertaining history of the Carolene Products case, see Geoffrey P. Miller, The True Story of Carolene Products, 1987 S. CT. REV. 397 (“Carolene’s legacy is not only Brown v. Board of Education; it is also the unrivaled primacy of interest groups in American politics of the last half-century.”)).

William H. Rehnquist, The Notion of a Living Constitution, 54 TEX. L. REV. 693 (1976). In this much-cited article, the Chief Justice briefly but thoughtfully makes the case for originalism.

Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849 (1989), and The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989). These two articles provide an excellent introduction to Justice Scalia’s judicial philosophy: originalism, textualism, bright lines, and an abhorrence of “balancing tests.”

Frank H. Easterbrook, Abstraction and Authority, 59 U. CHI. L. REV. 349 (1992). This article addresses the perennial and difficult problem of “levels of generality in constitutional interpretation”-that is, how do we decide how broadly to interpret a textual guarantee (or prohibition) of the Constitution?

Richard A. Posner, Bork and Beethoven, 42 STAN. L. REV. 1365 (1990). This piece is a highly critical but interesting discussion of the originalism espoused in Robert Bork’s The Tempting of America. In turn, Bork is defended and Posner attacked in Lino A. Graglia, ‘Interpreting’ the Constitution: Posner on Bork, 44 STAN. L. REV. 1019 (1992).

Michael Stokes Paulsen, The Many Faces of ‘Judicial Restraint’, 1993 PUB. INTEREST L. REV. 3. Professor Paulsen divides the “conservatives” on the Supreme Court into three categories and defines the jurisprudence of each camp:  “‘interpretivist’ conservatives who accord primacy to the text, history, and structure of the document being interpreted, ‘majoritarians’ who vindicate legislative choices, and `incrementalist’ conservatives who are committed to gradualist approaches to change in the state of the law, giving due weight to stare decisis and ‘settled doctrine.’ “ Stephen J. Markman, A Poor Choice of Words: Careless Rhetoric about the Constitution, 1991 DET. C.L. REV. 1325, is an excellent discussion of both nomenclature and the proper judicial role in constitutional decisionmaking. Originalism is defended (albeit with a new definition and qualifications some conservatives have rejected) as a means to liberal ends in MICHAEL J. PERRY, THE CONSTITUTION IN THE COURTS: LAW OR POLITICS? (1994).

James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129 (1893). Professor Henry Monaghan called this “the most influential essay ever written on American constitutional law.” It was the first systematic exposition of the idea that the judiciary should defer to the political branches unless the legislation under review is clearly unconstitutional, and was an acknowledged major influence on Justices Holmes, Brandeis, and Frankfurter. It continues to influence-see, e.g., David P. Bryden, Politics, the Constitution, and the New Formalism, 3 CONST. COMM. 415 (1986). Thayer also wrote a biography of Chief Justice Marshall, which contains a particularly interesting discussion of judicial review. Thayer’s work was commemorated at a recent symposium: One Hundred Years of Judicial Review: The Thayer Centennial Symposium, 88 Nw. U. L. Rev. 1 (1993). Participants at the symposium included Steven Calabresi, Gary Lawson, Jonathan Macey, Thomas Merrill, Stephen Presser, Martin Redish, and Steven Smith.

Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959). This classic paper, delivered as the 1959 Oliver Wendell Holmes Lecture at Harvard Law School, is divided into two parts. The first argues (contrary to Judge Learned Hand’s position) that courts are obliged to decide all constitutional cases in which the jurisdictional and procedural requirements are met. The second discusses the “neutral principles” that courts are obliged to use in such decisions-principles that rest on reasoning and analysis and that thereby transcend the judges’ value preferences. Judge Hand’s lecture from the same rostrum the previous year, in which he articulated his very cautious philosophy of judicial intervention, was also published. See LEARNED HAND, THE BILL OF RIGHTS (1958). (Earlier speeches and writings of Judge Hand are collected in Learned HAND, THE SPIRIT OF LIBERTY (1952).)

William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 DUKE L.J. 1. This article reexamines Marbury v. Madison in its historical context and analyzes the opinion in terms of the various alternative approaches that might have been taken by Chief Justice Marshall. The specific holding of the case is isolated-in contrast to the later interpretation given it-and historical materials are provided to illuminate the constitutional viewpoints of the period.

Lino A. Graglia, Constitutional Interpretation, 44 SYRACUSE L. REV. 631 (1993), and Constitutional Theory: The Attempted Justification for the Supreme Court’s Liberal Political Program, 65 TEX. L. REV. 789 (1987). These are two short and entertaining attacks on judicial overreaching by a leading conservative scholar. Professor Graglia explicitly addresses Justice Brennan’s critique of originalism in his (Graglia’s) article, How the Constitution Disappeared, in INTERPRETING THE CONSTITUTION (Jack N. Rakove, ed., 1990).

John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973). This frequently cited article provides a “nonpartisan” critique of Roe, finding it to be, among other things, even more dangerously activist than Lochner v. New York.

Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NW. U. L. REV. 226 (1988). Professor Kay defends originalism against its three common objections: that it is impossible to ascertain (or at least too hard), self-contradictory (the Framers didn’t intend it), and morally indefensible (it makes bad government and bad law). On the other hand, for a thoughtful critique and spoof of originalism, respectively, see Paul Brest, The Misconceived Quest for Original Understanding, 60 B.U. L. REV. 204 (1980), and Boris J. Bittker, The Bicentennial of the Jurisprudence of Original Intent: The Recent Past, 77 CALIF. L. REV. 235 (1989).

HENRY J. ABRAHAM, THE JUDICIAL PROCESS (5th ed., 1986). There are courts besides the Supreme Court-not only lower federal courts, but state courts, and even courts in foreign countries. Professor Abraham’s classic volume provides a useful tour of them all, including their staffing and procedures, the nature and kinds of law, and the different types of judicial review, concluding with his “Sixteen Great Maxims of Judicial Self-Restraint.”

Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 STAN. L. REV. 1209 (2010).  In this groundbreaking article, Professor Rosenkranz proposes a new mode of constitutional analysis.  Just as the Constitution prohibits not objects but actions--and just as actions require actors--so every constitutional inquiry, Rosenkranz argues, should first ask "who" violated the Constitution and "when" the violation took place.  The answers to these questions, he contends, dictate the proper structure of judicial review, which in turn informs the scope of substantive rights and powers in dispute.

Nicholas Quinn Rosenkranz, The Objects of the Constitution, 63 STAN. L. REV. 1005 (2011).  This sequel continues the analysis begun in The Subjects of the Constitution.  Although judges often describe "statutes" as violating the Constitution, the true "violator," Professor Rosenkranz notes, is not the law itself but rather the legislature that passed it or the executive who applied it--and review of executive action proceeds differently from review of legislative action.  Identifying the proper actors or "subjects," Rosenkranz explains, enables us to discern the corresponding "objects" in the Bill of Rights and other provisions of the Constitution.  Taken together, these subjects and objects shed new light on the structure of the Constitution.

Role of the President

Article II, Heritage Guide at 179-231.  Containing analyses of all Article II clauses by Sai Prakash, David Forte, Einer Elhauge, Tadahisa Kuroda, James Ho, John Feerick, Robert Delahunty, Vasan Kesavan, John Yoo, Todd Gaziano, James Pfiffner, Michael D. Ramsey, John McGinnis, Douglas Cox, Michael Carrier, Matthew Spalding, J. Gregory Sidak, Michael Frank, Trent England, Stephen Presser, and Michael Uhlmann.  Professor McGinnis’ analysis of the Appointments Clause is available for download here: http://www.heritage.org/About/Bookstore/upload/85012_1.pdf.

Foreign Affairs and the Constitution: The Roles of Congress, the President, and the Courts, 43 U. MIAMI L. REV. 1 (1988). Although, as its title indicates, this Federalist Society symposium discusses all three branches, the focus is heavily on the executive. There were twenty-five participants, including Arthur B. Culvahouse, Jr., Orrin Hatch, Irving Kristol, Geoffrey Miller, John Norton Moore, Richard Perle, Joseph Rees, Eugene V. Rostow, Gordon Tullock, William Webster, and Richard Willard.

THE FETTERED PRESIDENCY: LEGAL CONSTRAINTS ON THE EXECUTIVE BRANCH (L. Gordon Crovitz & Jeremy A. Rabkin, eds., 1989). This book, published by the American Enterprise Institute, covers a wide range of executive-branch issues by collecting the views of an impressive array of experts, many of them former federal policymakers. Included are Elliott Abrams, Paul Bator, Suzanne Garment, Boyden Gray, Alan Keyes, Jeane Kirkpatrick, Richard Perle, Eugene Rostow, Loren Smith, William French Smith, and Caspar Weinberger. The Foreword is by Robert Bork.

Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Law, 104 YALE L.J. 541 (1994). Professors Calabresi and Prakash analyze the Constitution’s text, review its history, and conclude: “The Framers and ratifiers consciously and deliberately chose to put one person in charge of executing all federal laws.” This means, among other things, that there cannot be a “headless fourth branch of government,” namely so-called independent agencies.

Steven G. Calabresi, Some Normative Arguments for a Unitary Executive, 48 ARK. L. REV. 23 (1995). Professor Calabresi discusses the Framers’ reasons for creating a strong and unitary (that is, headed by a single person) executive branch, why unitariness remains as important as strength, and why the New Deal expansion of federal power makes a strongly unitary executive even more essential.

Eugene V. Rostow, Once More Unto the Breach: The War Powers Resolution Revisited, 21 VAL. U. L. REV. 1 (1986). This article makes the historical and legal case for a strong President in the foreign affairs arena and against limitations on his authority, such as the War Powers Resolution.

LOUIS FISHER, PRESIDENTIAL WAR POWER (2d. ed., 2004).  Fisher presents historic and constitutional arguments against a broad understanding of presidential war powers.

Michael D. Ramsey, Textualism and War Powers, 69 U. CHI. L. REV. 1543 (2002).  An exploration of the eighteenth century use of the phrase “declare war,” finding it had a broader meaning than commonly supposed, suggesting that Congress’ power to declare war broadly encompasses the power to initiate warfare.  Ramsey goes on to argue, however, that Presidential actions that do not create a state of war, even if they involve military force or create a likelihood of war, do not require authorization.

Jay S. Bybee, Advising the President: Separation of Powers and the Federal Advisory Committee Act, 104 YALE L.J. 51 (1994). This article discusses the constitutional problems raised by another congressional incursion on executive branch authority, namely the Federal Advisory Committee Act, which limits the terms on which the President can acquire information from nongovernmental advisory committees.

Joel K. Goldstein, The Presidency and the Rule of Law: Some Preliminary Explorations, 43 ST. LOUIS L.J. 791 (1999).  Goldstein provides a survey of the Persident’s constitutional role in protecting and observing the Rule of Law, challenging the notion of the Supreme Court as exclusive or ultimate interpreter of the Constitution.  

Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231 (2001).  A discussion of the framework for foreign affairs discernable from the text of the Constitution, in which the authors also demonstrate that eighteenth-century political theory included foreign affairs powers as part of the executive power.

Curtis Bradley & Jack Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. PA. L. REV. 399 (2000). Bradley and Goldsmith challenge the conventional wisdom that human rights reservations, understandings and declarations (RUDs) are invalid under international and U.S. law and detrimental to human rights causes.  The authors argue that the RUDs  serve as a bridge between isolationists who want to preserve the United States’ sovereign prerogatives, and internationalists who want the United States to increase its involvement in international institutions, and that they help reconcile fundamental changes in international law with the requirements of the U.S. constitutional system.

Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 STAN. L. REV. 1209 (2010).  In this groundbreaking article, Professor Rosenkranz proposes a new mode of constitutional analysis.  Just as the Constitution prohibits not objects but actions--and just as actions require actors--so every constitutional inquiry, Rosenkranz argues, should first ask "who" violated the Constitution and "when" the violation took place.  The answers to these questions, he contends, dictate the proper structure of judicial review, which in turn informs the scope of substantive rights and powers in dispute.

Role of Congress

Article I, Heritage Guide at 46-178.  Containing analyses of all Article I clauses by a number of scholars.  Analyses available for download include: Legislative Vesting Clause, Douglas Ginsburg (http://www.heritage.org/About/Bookstore/upload/85015_1.pdf), Obligation of Contract, Richard Epstein (http://www.heritage.org/About/Bookstore/upload/85010_1.pdf), and Compact Clause, Michael S. Greve (http://www.heritage.org/About/Bookstore/upload/85010_1.pdf).

The Congress: Representation, Accountability and the Rule of Law, 23 CUMB. L. REV. 1 (1993). This Federalist Society symposium included panels on the legislative role in the American Republic, incumbency advantage and congressional accountability, the administrative state, and term limits, as well as a keynote address by then-Vice President Quayle and other addresses by Boyden Gray and Laurence Silberman. Other contributors to the symposium included Walter Berns, Christopher Cox, Michael Horowitz, Alan Keyes, Gary Lawson, Jonathan Macey, Theodore Olson, Martin Redish, and William Bradford Reynolds.

Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 STAN. L. REV. 895 (1984). The issue described by the title of this article is a perennial one, never resolved in the courts or in the literature, and arising whenever judicial decisions are unpopular enough to provoke Congress to talk about taking direct action against the judiciary. Professor Gunther carefully considers the Constitution’s text and discusses why Congress’s power in this area is indeed broad, although it may be unwise to exercise it. See also Raoul Berger, Congressional Contraction of Federal Jurisdiction, 1980 WIS. L. REV. 801; Stuart S. Nagel, Court-Curbing Periods in American History, 18 VAND. L. REV. 925 (1965). One conservative scholar has argued that, rather than limiting appellate jurisdiction, the better approach is for Congress to spell out “the various procedural arrangements that serve to guide and hem in the exercise of substantive judicial power” (i.e., standing, class actions, intervention, consent decrees, and declaratory and equitable relief). GARY L. MCDOWELL, CURBING THE COURTS: THE CONSTITUTION AND THE LIMITS OF JUDICIAL POWER (1988).

Gary Lawson & Patricia B. Granger, The ‘Proper’ Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J. 267 (1993). The “Sweeping Clause” is how Alexander Hamilton in The Federalist referred to what is now more commonly called the “Necessary and Proper Clause” of Article I, Section 8 of the Constitution. The authors’ thesis is that the words “and proper” have been unjustly neglected, and that they are, and were intended to be, “a textual guardian of principles of separation of powers, principles of federalism, and unenumerated individual rights.” Herman Wolkinson, Demands of Congressional Committees for Executive Papers, 10 FED. B. J. 102, 223, 319 (1949). This three-part article makes a strong case for the executive branch’s authority to withhold papers sought by congressional committees. Note the date: at the time, this principle was being invoked to resist the investigative activities of Congress relating to domestic Communist activity. Arnold I. Burns & Stephen J. Markman, Understanding Separation of Powers, 7 PACE L. REV. 575 (1987), is a more recent discussion of Congress’s infringements in a variety of ways on the executive’s rightful authorities; this article also provides a good general discussion of separation of powers.

Adrian Vermeule, The Constitutional Law of Official Compensation, 102 COLUM. L. REV. 501 (2002).  Professor Vermeule takes up the question of which branch or institution, in a system of separation of powers, should decide how officials are compensated for their services. He examines a range of constitutional texts and precedents and describes these rules as responses to the constitutional-design tradeoff between promoting institutional independence and minimizing institutional conflicts of interest.  In that light he evaluates their costs and benefits and proposes doctrinal adjustments intended to improve the constitutional law of official compensation.

John O. McGinnis & Michael B. Rappaport, The Rights of Legislators and the Wrongs of Interpretation: A Further Defense of the Constitutionality of Legislative Supermajority Rules, 47 DUKE L.J. 327 (1997).  A constitutional and historical defense of the House rule, adopted in 1995, that that requires a three-fifths majority of those voting to pass an increase in income tax rates.

Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327 (2002).  Professor Lawson argues that the doctrine of non-delegation, though now essentially a dead letter in the case law, flows directly from the doctrine of enumerated powers: the executive and judiciary have no enumerated power to make law, and Congress has no enumerated power to constitute them as lawmakers.

Robert G. Natelson, The General Welfare Clause and the Public Trust: An Essay in Original Understanding, 52 U. KAN. L. REV. 1 (2003).  Professor Natelson examines the original understanding of the “General Welfare Clause”—the Constitutional clause generally held to support federal spending programs and their associated requirements.  Natelson rejects, as textually and/or historically flawed, the understandings of the Clause as a plenary grant of regulatory and spending power,  a plenary grant of spending power only, or as a mere “non-grant” of spending power.  He argues the clause, in fact, was a sweeping denial of power, intended to impose on Congress a standard of impartiality borrowed from the law of trusts, thereby limiting the legislature’s capacity to “play favorites” with federal tax money.

John C. Eastman, Restoring ‘General’ to the General Welfare Clause, 4 CHAPMAN L. REV. 63 (2001). An examination of the original understanding of the Spending Clause (giving Congress the power to tax for the common defense and general welfare) and the competing interpretations of it offered by Alexander Hamilton, on the one hand, and James Madison and Thomas Jefferson, on the other.

Paul J. Heald & Suzanna Sherry, Implied Limits on the Legislative Power: The Intellectual Property Clause as an Absolute Constraint on Congress, 2000 U. ILL. L. REV. 1119 (2000).  Professors Heald and Sherry argue that the language of Article I, Section 8, Clause 8, the Intellectual Property Clause, absolutely constrains Congress’s legislative power under certain circumstances, and distill four principles of constitutional weight - the Suspect Grant Principle, the Quid Pro Quo Principle, the Authorship Principle, and the Public Domain Principle, which inform the Court’s jurisprudence in cases involving the Intellectual Property Clause, acting as implied and absolute limits on Congress’s exercise of its legislative power.

Thomas B. Nachbar, Intellectual Property and Constitutional Norms, 104 COLUM. L. REV. 272 (2004).  Professor Nachbar asks whether Congress can avoid the restrictions on its intellectual property power (such as the “limited Times” requirement or the prohibition against protecting facts and, consequently, electronic databases) by resorting instead to other Article I powers, such as the commerce power.  He concludes that it can, there being no generally applicable constitutional norm derivable from the limits expressed in the intellectual property clause.

Randy E. Barnett, Necessary and Proper, 44 UCLA L. REV. 745 (1997).  Professor Barnett challenges the conventional wisdom concerning the necessary and proper clause as conferring broad legislative authority upon Congress, arguing instead that it mandates robust inquiry as to whether a law is in fact both “necessary” and “proper.”

Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085 (2002). Noting that American courts have no uniform, generally accepted theory of statutory interpretation, Professor Rosenkranz observes that the result is a "cacophony" of competing academic and judicial interpretive theories.  He argues that Congress can and should, consistent with its constitutional powers, impose a measure of order by crafting federal rules of statutory interpretation.  This outcome, Rosenkranz concludes, is both constitutionally sound and desirable as a policy matter.

Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 STAN. L. REV. 1209 (2010).  In this groundbreaking article, Professor Rosenkranz proposes a new mode of constitutional analysis.  Just as the Constitution prohibits not objects but actions--and just as actions require actors--so every constitutional inquiry, Rosenkranz argues, should first ask "who" violated the Constitution and "when" the violation took place.  The answers to these questions, he contends, dictate the proper structure of judicial review, which in turn informs the scope of substantive rights and powers in dispute.

Nicholas Quinn Rosenkranz, The Objects of the Constitution, 63 STAN. L. REV. 1005 (2011).  This sequel continues the analysis begun in The Subjects of the Constitution.  Although judges often describe "statutes" as violating the Constitution, the true "violator," Professor Rosenkranz notes, is not the law itself but rather the legislature that passed it or the executive who applied it--and review of executive action proceeds differently from review of legislative action.  Identifying the proper actors or "subjects," Rosenkranz explains, enables us to discern the corresponding "objects" in the Bill of Rights and other provisions of the Constitution.  Taken together, these subjects and objects shed new light on the structure of the Constitution.

See also suggested readings in Commerce Clause section, supra.

The Bill of Rights

The Bill of Rights after 200 Years, 15 HARV. J.L. & PUB. POL’Y 1 (1992). This Federalist Society symposium included panels on: “Should the Bill of Rights Fully Protect Fundamental Freedoms?,” “How Effective Are Bills of Rights in Protecting Freedom and Civil Liberties?,” “The Bill of Rights and Governmental Structure: Republicanism and Mediating Institutions,” and “Judicial Interpretation of the Bill of Rights.” More than twenty papers were presented, and the authors include William Barr, Walter Berns, Stephen Carter, Frank Easterbrook, Richard Epstein, John Harrison, Gary Lawson, Thomas Merrill, Theodore Olson, Nadine Strossen, and Ralph Winter.

Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131 (1991). In this article, Professor Amar breaks with the modern practice by which the Bill of Rights “has been chopped up into discrete chunks of text, with each bit examined in isolation.” Instead, he “offer[s] an integrated overview of the Bill of Rights as originally conceived, . . . illustrat[ing] how its myriad provisions related to each other and to those of the original Constitution.” Especially interesting is his argument that it is best understood not simply or even primarily as a list of individual rights protected against any government intrusion, but as a more complex arrangement for deploying rights and responsibilities-among federal and state governments; mediating institutions such as churches, militias, and juries; and individuals-”not to impede popular majorities, but to empower them.” For an expanded treatment by Professor Amar, see THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (2000). Geoffrey P. Miller, Rights and Structure in Constitutional Theory, 8 Soc. PHIL. & POL’Y 196 (1991), takes a similarly comprehensive approach to the Bill of Rights and its relationship to the original Constitution, arguing that the first ten amendments should be understood not only as a denial of power to the federal government, but also as a grant of power to the Supreme Court at the expense of the other branches of the national government.

Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 STAN. L. REV. 1209 (2010).  In this groundbreaking article, Professor Rosenkranz proposes a new mode of constitutional analysis.  Just as the Constitution prohibits not objects but actions--and just as actions require actors--so every constitutional inquiry, Rosenkranz argues, should first ask "who" violated the Constitution and "when" the violation took place.  The answers to these questions, he contends, dictate the proper structure of judicial review, which in turn informs the scope of substantive rights and powers in dispute.

Nicholas Quinn Rosenkranz, The Objects of the Constitution, 63 STAN. L. REV. 1005 (2011).  This sequel continues the analysis begun in The Subjects of the Constitution.  Although judges often describe "statutes" as violating the Constitution, the true "violator," Professor Rosenkranz notes, is not the law itself but rather the legislature that passed it or the executive who applied it--and review of executive action proceeds differently from review of legislative action.  Identifying the proper actors or "subjects," Rosenkranz explains, enables us to discern the corresponding "objects" in the Bill of Rights and other provisions of the Constitution.  Taken together, these subjects and objects shed new light on the structure of the Constitution.

First Amendment

Amendment 1, Heritage Guide at 302-318.  Contains analyses of all First Amendment Clauses by John Baker, Thomas Berg, Eugene Volokh, and David Bernstein.

A Symposium on the First Amendment, 10 HARV. J.L. PUB. POL’Y 1 (1987). This 1986 symposium contains sixteen papers on a wide range of First Amendment issues, including the free exercise of religion, the Establishment Clause, free speech, and associational rights. Authors include Randy Barnett, Paul Bator, Lillian BeVier, Frank Easterbrook, Milton Friedman, Henry Mark Holzer, and Michael McConnell.

WALTER BERNS, THE FIRST AMENDMENT AND THE FUTURE OF AMERICAN DEMOCRACY (1976). Professor Berns carefully analyzes the history of the First Amendment (both regarding the Religion Clauses and freedom of speech) and critiques the Supreme Court’s interpretation of them. In his analysis of how all this relates to “the future of American democracy,” Berns quotes Tocqueville “frequently,” since “he was and remains democracy’s best teacher.”

Religion Clauses

RELIGIOUS LIBERTY IN THE SUPREME COURT (Terry Eastland, ed., 1993). This is best described as a specialized case book. It includes the twenty-five Religion Clauses cases decided from 1940-92 that probably have had the most doctrinal significance, along with contemporaneous editorial responses to those decisions. There are three concluding essays-by Mary Ann Glendon of Harvard Law School, Michael Sandel of Harvard University, and Michael McConnell of the University of Chicago Law School-criticizing the Supreme Court’s jurisprudence.

GERARD BRADLEY, CHURCH-STATE RELATIONSHIPS IN AMERICA (1987). Although the Supreme Court and many commentators have asserted that the Framers intended “the relegation and isolation of religion,” Professor Bradley attempts to prove false “these counterintuitive judicial commandments” by careful attention to the Establishment Clause’s text and history. “[T]he intuitively plausible conclusion-that government interaction with religion be conditioned on a neutrality among sects-is the historically demonstrable meaning of nonestablishment, and represents the fundamental alternative to what the Court has wrought.”

PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE (2002).  Professor Hamburger argues that the separation of church and state has no historical foundation in the First Amendment. Through an examination of historical evidence, he attempts to show that eighteenth-century Americans almost never invoked this principle and that, although Thomas Jefferson and others retrospectively claimed that the First Amendment separated church and state, separation became part of American constitutional law only much later, in part as a result of fear and prejudice.

Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115 (1992). In this article, Professor McConnell critiques the Religion Clauses jurisprudence of the Warren, Burger, and Rehnquist Courts, and then “suggest[s] how a proper jurisprudence of the Religion Clauses should look,” arguing that their purpose “is to protect the religious lives of the people from unnecessary intrusions of government, whether promoting or hindering religion.” More specialized articles by Professor McConnell on Establishment Clause issues include Accommodation of Religion, 1985 S. CT. REV. 1, and The Selective Funding Problem: Abortions and Religious Schools, 104 HARV. L. REV. 109 (1987).

William C. Porth & Robert P. George, Trimming the Ivy: A Bicentennial Re-examination of the Establishment Clause, 90 W. VA. L. REV. 109 (1987). This article is an interesting attempt to “focus[] on the plain meaning of the [establishment] clause” and suggests a general principle of “even-handedness in all governmental action toward religious activities . . .. .”

Steven D. Smith, Separation and the ‘Secular’: Reconstructing the Disestablishment Decision, 67 TEX. L. REV. 955 (1989). This article maintains that institutional separation of church and state was intended by the Establishment Clause-but that modern interpreters have confused “separation” with “secularism,” and that governmental secularism is not what the Framers had in mind.

Douglas Laycock, ‘Nonpreferential’ Aid to Religion: A False Claim about Original Intent, 27 Wm. & MARY L. REV. 875 (1985-86). Professor Laycock concludes that the Framers did not mean to permit government aid to religion, even where that aid does not prefer one religion over others. Robert Cord, Church-State Separation: Restoring the ‘No Preference’ Doctrine of the First Amendment, 9 HARV. J.L. & PUB. POL’Y 129 (1986). The Supreme Court’s 1947 decision in Everson v. Board of Education begins the modern era of Establishment Clause jurisprudence. Professor Cord argues that the Court got off on the wrong foot in Everson, that the Establishment Clause was intended to achieve only the limited purpose of prohibiting the federal government from preferential treatment for any particular religious denomination, and that some more recent opinions indicate a willingness to redirect the Court’s jurisprudence. For a more extensive discussion of Professor Cord’s views on the Establishment Clause, see ROBERT CORD, SEPARATION OF CHURCH AND STATE: HISTORICAL FACT AND CURRENT FICTION (1982).

Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409 (1990); Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 GEO. WASH. L. REV. 915 (1992); and Gerard V. Bradley, Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism, 20 HOFSTRA L. REV. 245 (1991). Professor McConnell’s article in the Harvard Law Review is his most definitive discussion of the original meaning of the Free Exercise Clause. As it went to press, however, the Supreme Court handed down its 1990 decision in Employment Division v. Smith, ruling that the government need not create exemptions for religious practice from neutral and generally applicable prohibitions. This decision has split conservatives. McConnell’s findings are inconsistent with Smith, as he elaborates in Free Exercise Revisionism and the Smith Decision, 57 U. CHI. L. REV. 1109 (1990); Hamburger and Bradley maintain that Smith is consistent with the Free Exercise Clause’s original meaning.

Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 WM. & MARY L. REV. 2105 (2003).  The first of a two-part historical inquiry into the debates surrounding establishment and disestablishment in the United States.  This first part provides a legal history of established religion in England, the colonies, and the early states; catalogs the laws and practices that constituted an establishment; and sets forth the principal (and competing) rationales for the establishment.  The second part, on disestablishment, is forthcoming.

Free Speech

Eugene Volokh, Amendment 1-Freedom of Speech and of the Press, Heritage Guide at 311 (available at: http://www.heritage.org/About/Bookstore/upload/85009_1.pdf). 

John O. McGinnis, The Once and Future Property-Based Vision of the First Amendment, 63 U. CHI. L. REV. 49 (1996). Professor McGinnis argues for a return to James Madison’s conception of the First Amendment as establishing a property right for individuals in their ideas and opinions, rather than the New Deal’s understanding of it as “an essential social instrument through which citizens could rationally and collectively plan for a better world.” The article focuses in particular on the benefits of the Madisonian approach in the telecommunications context.

Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971). The first half of this article builds on Herbert Wechsler’s call for “neutral principles” in Supreme Court adjudication (see supra p. 25), extending the doctrine to the definition and derivation of principles as well as their application. The Court is found lacking. Judge Bork then attempts to derive some neutral principles in the free speech area, concluding that “[c]onstitutional protection should be accorded only to speech that is explicitly political” and excepting speech that advocates the overthrow of government or other violations of the law.

LEONARD W. LEVY, LEGACY OF SUPPRESSION: FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY (1964). “This book presents a revisionist interpretation of the origins and original understanding of the First Amendment’s clause on freedom of speech and press,” begins the preface. Professor Levy writes that he is “reluctantly forced to conclude that the generation which adopted the Constitution and the Bill of Rights did not believe in a broad scope for freedom of expression, particularly in the realm of politics.” For an originalist critique of Levy’s work, see William T. Mayton, From a Legacy of Suppression to the ‘Metaphor of the Fourth Estate,’ 39 STAN. L. REV. 139 (1986). See also Philip Hamburger, The Development of the Law of Seditious Libel and the Control of the Press, 37 STAN. L. REV. 661 (1985).

Henry Mark Holzer, Sauce for the Goose: The Left, the Right, and Free Speech, 1995 PUB. INTEREST L. REV. 1. This libertarian article condemns Left and Right alike for their willingness to suppress speech-the Left targeting “hate speech,” abortion protests, and the like; the Right, pornography. See also Michael S. Greve, Civil Rights and Uncivil Speech, 1994 PUB. INTEREST L. REV. 1 (also discussing “hate speech”).

RICHARD E. WILEY, ET AL., COMMERCIAL SPEECH AND THE FIRST AMENDMENT (1994) (National Legal Center for the Public Interest white paper). The Supreme Court has drawn a distinction between “commercial” speech and other speech, affording the former less constitutional protection under the First Amendment. This white paper suggests why, in historical context, this distinction would have baffled the Framers: commercial speech was inextricably intertwined with other text in colonial newspapers. But some money-making activities may not be entitled to First Amendment protection, as discussed in Robert Teir, Maintaining Safety and Civility in Public Spaces: A Constitutional Approach to Aggressive Begging, 54 LA. L. REV. 285 (1993).

Lillian BeVier, Campaign Finance Reform: Specious Arguments, Intractable Dilemmas, 94 COLUM. L. REV. 1258 (1994). In this article, Professor BeVier critically assesses the justifications that have been offered in support of campaign finance reform. She also considers the debate regarding the intensity of judicial review of campaign finance legislation.

Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 UCLA L. REV. 1791 (1992). A thorough analysis of how current Title VII harassment law-and especially hostile environment standards-affect First Amendment freedoms. See also Kingsley Browne, Title VII as Censorship: Hostile-Environment Harassment and the First Amendment, 52 OHIO ST. L.J. 488 (1991), and, for a civil liberties spin on the subject, Chapter 7 of NADINE STROSSEN, DEFENDING PORNOGRAPHY (1995).

MICHAEL KENT CURTIS, FREE SPEECH, “THE PEOPLE’S DARLING PRIVILEGE” (2000).  A history of popular demand for freedom of speech, stretching back to the eighteenth century.  Professor Curtis denies the common notion that modern ideas about freedom of speech derived from twentieth century Supreme Court cases.

Second Amendment

Nelson Lund, To Keep and Bear Arms, Heritage Guide at 318-322.

Randy E. Barnett & Don B. Kates, Under Fire: the New Consensus on the Second Amendment, 45 EMORY L. J. 1139 (1996).  A defense of the individual right interpretation of the Second Amendment and the scholarly consensus in support of it, including textual, structural, historical, and criminological evidence.

Nelson Lund, The Past and Future of the Individual’s Right to Bear Arms, 31 GA. L. REV. 1 (1996).  In addition to a comprehensive textual argument in favor of the individual right interpretation, this article discusses the problems of applying the right to contemporary technology, and in the face of Fourteenth Amendment incorporation requirements.

Eugene Volokh, The Commonplace Second Amendment, 73 NYU L. REV. 793 (1998).  Professor Volokh’s influential article, cited in the Supreme Court’s seminal 2008 decision in District of Columbia vs. Heller, points out that the structure of the Second Amendment was commonplace in American constitutions of the Framing era:  State Bills of Rights contained justification clauses for many of the rights they secured.  Looking at these state provisions, he suggests, can shed light on how the similarly structured Second Amendment should be interpreted.  In particular, the provisions show that constitutional rights will often -- and for good reason -- be written in ways that are to some extent overinclusive and to some extent underinclusive with respect to their stated justifications.

Ninth Amendment

Thomas B. McAffee, Rights Retained by the People, Heritage Guide at 366 (available at http://www.heritage.org/about/bookstore/upload/AmendmentIX.pdf ).

Randy E. Barnett, Reconceiving the Ninth Amendment, 74 CORNELL L. REV. 1 (1988), and Thomas B. McAffee, The Original Meaning of the Ninth Amendment, 90 COLUM. L. REV. 1215 (1990). The Ninth Amendment provides, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The Barnett article argues that this means there are such things as “unenumerated rights,” and then discusses principled ways in which they might be enumerated without writing a blank check to the judiciary. The McAffee article counters that, rather than writing unenumerated rights into the Constitution, the Ninth Amendment simply confirms the structural guarantees for individual rights provided by the doctrine of enumerated powers and the rest of the Constitution. The McAffee approach finds support in Charles J. Cooper, Limited Government and Individual Liberty: The Ninth Amendment’s Forgotten Lessons, 4 J. L. & POL. 63 (1987). Professor Barnett later expands on this defense of the people’s rights in RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY (2004).  In this book Barnett adopts a “presumption of liberty,” to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty and provides a theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people.

Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 TEX. L. REV. 331 (2004) and The Lost Jurisprudence of the Ninth Amendment, 83 TEX. L. REV. 597 (2005).  In his first article, Professor Lash presents new evidence regarding the original meaning of the Ninth Amendment, the roots of which, he argues, can be found in the state ratification convention demands for a constitutional amendment prohibiting the constructive enlargement of federal power.  In his second article, Professor Lash argues that, contrary to the assumption that the Ninth Amendment was not revived until the 1965 case Griswold v. Connecticut, the Amendment in fact played a significant role in constitutional disputes throughout history, including the scope of exclusive versus concurrent federal power, the authority of the federal government to regulate slavery, the right of the states to secede from the Union, the constitutionality of the New Deal, and the legitimacy and scope of incorporation of the Bill of Rights into the Fourteenth Amendment.

Fourteenth Amendment

Amendment XIV, Heritage Guide at 384-409.  Includes analyses of all clauses of the Fourteenth Amendment  by Edward Erler, Patrick Kelley, Calvin Massey, James W. Ely, Jr., David Smolin, Paul Moreno, and Roger Clegg.

RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (2d ed. 1997). This book attacks the Supreme Court’s “continuing revision of the [Fourteenth Amendment] under the guise of interpretation.” The first part of the book provides the history of the amendment’s enactment, and the second part the critical account of its interpretation by the Court.

EARL M. MALTZ, CIVIL RIGHTS, THE CONSTITUTION, AND CONGRESS, 1863-1869 (1990). While acknowledging in the preface that “[o]riginalism is currently unfashionable in the academic world,” Professor Maltz asserts that “the search for the original understanding of the drafters of the Reconstruction amendments . . . [is] critical to proper constitutional analysis.” He then proceeds with that search, not only for the original understanding of the Fourteenth Amendment, but for the Thirteenth and Fifteenth Amendments as well.

Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Original Understanding, 2 STAN. L. REV. 5 (1949). Professor Fairman answers “no” to the question posed by his article’s title, and painstakingly collects and recounts the historical evidence. In some respects his scholarship has been superseded and his conclusions questioned, but his article is nonetheless an indispensable classic on the original understanding of the Fourteenth Amendment.

Michael McConnell, Originalism and the Desegregation Decisions, 81 VA. L. REV. 947 (1995). Professor McConnell begins by noting the scholarly consensus, across the ideological spectrum, that Brown v. Board of Education cannot be squared with the original meaning of the Fourteenth Amendment, but then proceeds to challenge that consensus. The Virginia Law Review subsequently printed a response and reply: Michael J. Klarman, Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell, 81 VA. L. REV. 1881 (1995), and Michael W. McConnell, The Originalist Justification for Brown: A Reply to Professor Klarman 81 VA. L. REV. 1937 (1995).

Equal Protection Clause

The Future of Civil Rights Law, 14 HARV. J.L. & PUB. POL’Y 1 (1991). This Federalist Society symposium includes panels on the definition of civil rights, the role of government in closing the socioeconomic gap for minorities, the “effects test” for determining the presence of discrimination, limits on judicial remedial authority, and the increasing tension between civil rights claims and free speech. Participants included Hadley Arkes, Clint Bolick, Jennifer Roback, Charles Shanor, R. Gaull Silberman, and Lawrence Siskind. An earlier Federalist Society symposium on Equality and the Law appears in 9 HARV. J.L. & PUB. POL’Y 1 (1986), with papers by Paul Bator, Charles Cooper, Robert Destro, Thomas Gee, Lino Graglia, Orrin Hatch, Harry Jaffa, William Kristol, Henry Manne, William Bradford Reynolds, Antonin Scalia, Gordon Tullock, and Ralph Winter.

Lino A. Graglia, The ‘Remedy’ Rationale for Requiring or Permitting Otherwise Prohibited Discrimination: How the Court Overcame the Constitution and the 1964 Civil Rights Act, 22 SUFFOLK L. REV. 569 (1988). Professor Graglia is a vigorous and entertaining writer, especially on issues of judicial overreaching and civil rights, and this article is one of his best. In it, he chronicles “[t]he Court’s relentless march through the various titles of the 1964 Civil Rights Act, converting them from prohibitions to approvals of racial discrimination,” in the Swann (school desegregation), Bakke (college admissions), and Weber (employment discrimination) decisions. For detailed accounts of the Supreme Court’s school desegregation decisions, see LINO A. GRAGLIA, DISASTER BY DECREE: THE SUPREME COURT DECISIONS ON RACE AND THE SCHOOLS (1976), and J. HARVIE WILKINSON III, FROM BROWN TO BAKKE: THE SUPREME COURT AND SCHOOL INTEGRATION, 1954-1978 (1979). For analysis of the social science evidence on school desegregation by a leading expert, and discussion of the relevant case law as well, see DAVID J. ARMOR, FORCED JUSTICE: SCHOOL DESEGREGATION AND THE LAW (1995).                                                       

ABIGAIL M. THERNSTROM, WHOSE VOTES COUNT?: AFFIRMATIVE ACTION AND MINORITY VOTING RIGHTS (1987). This book argues that, starting in the late sixties and early seventies, the Voting Rights Act was transmogrified by bureaucrats, civil rights activists, and courts into a powerful engine for quotas and guaranteed results (versus equal opportunity), racially gerrymandered “safe seats” for minority representatives, and racial balkanization.

John Harrison, Equality, Race Discrimination, and the Fourteenth Amendment, 13 CONST. COMM. 243 (1999).  Professor Harrison argues that and if the Fourteenth Amendment does indeed yield some kind of ban on race discrimination, its text is most plausibly read as a ban on all such distinctions, with no exception for symmetrical discrimination (that is, Jim Crow segregation).

As the Jim Crow era recedes into the past, the remedial justification for racial preferences becomes more untenable, and the substitute justification of benefits from “diversity” are relied on; the Supreme Court accepted such benefits as “compelling” in Grutter v. Bollinger (2003), to the dismay of those opposing such preferences.  For a discussion of how to attack that decision, and a review of an important book that criticizes the diversity concept more broadly, see Roger Clegg, Attacking ‘Diversity’: A Review of Peter Wood’s Diversity: the Invention of a Concept, 31 J.C. & U.L. 417 (2005).

For a discussion of the Supreme Court’s recent equal protection jurisprudence generally, including the Grutter decision, see Nelson Lund, The Rehnquist Court’s Pragmatic Approach to Civil Rights, 99 NW. U.L. REV. 249 (2004).

The point that there is no “diversity” exception to Title VII is made by Professor Kingsley R. Browne in Nonremedial Justifications for Affirmative Action in Employment: A Critique of the Justice Department Position, 21 LABOR LAWYER 451, 461-472 (1997).  In addition, Professor Nelson Lund has argued that Congress, in enacting the Civil Rights Act of 1991, implicitly rejected even the remedial justification for an exception to Title VII.  Nelson Lund, The Law of Affirmative Action in an After the Civil Rights Act of 1991: Congress Invites Judicial Reform, 6 GEO. MASON L. REV. 87 (1997).

A useful anthology of leading conservatives’ writing on a variety of civil rights issues is BEYOND THE COLOR LINE: NEW PERSPECTIVES ON RACE AND ETHNICITY IN AMERICA (Abigail & Stephen Thernstrom, eds., 2002).

The “disparate impact” theory of liability drives employers and others to adopt surreptitious quotas and abandon perfectly legitimate selection criteria.  The approach is criticized in Roger Clegg, DISPARATE IMPACT IN THE PRIVATE SECTOR: A THEORY GOING HAYWIRE (2001) (National Legal Center for the Public Interest monograph).  An earlier version is Roger Clegg, The Bad Law of ‘Disparate Impact’, PUBLIC INTEREST, Winter 2000, at 79.  A critique in a specific but important context is Jennifer C. Braceras, Killing the Messenger: The Misuse of Disparate Impact Theory to Challenge High-Stakes Educational Tests, 55 VAND. L. REV. 1111 (2002).

Two important law review articles discuss how racial preferences actually harm the intended beneficiaries, specifically in the context of law schools and law firms.  Richard H. Sander, The Racial Paradox of the Corporate Law Firm, 84 N.C.  L. REV. 1755 (2006); Richard H. Sander, A Systemic Analysis of Affirmative Action in American Law Schools, 57 STAN. L. REV. 367 (2004).

For a general criticism of the Americans with Disabilities Act, see Roger Clegg, The Costly Compassion of the ADA, PUBLIC INTEREST, Summer 1999, at 100.

As attacks on overt racial preferences in university admissions continue to mount and, often, succeed, some schools are chosen deliberately to ensure some degree of racial and ethnic diversity in the student body; it is not clear, however, that such measures are legal either.  Brian T. Fitzpatrick has written two good articles here (one about Texas, applying the Equal Protection Clause; the other about Michigan, where the legal objection would be under a recently passed referendum that bans racial preferences): Strict Scrutiny of Facially Race-Neutral State Action and the Texas Ten Percent Plan, 53 BAYLOR L. REV. 289 (2001); Can Michigan Universities Use Proxies for Race After the Ban on Racial Preferences? 13 MICH. J. RACE & LAW 277 (2007).

Privileges or Immunities Clause

John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L.J. 1385 (1992). According to Professor Harrison, it is the Fourteenth Amendment’s Privileges or Immunities Clause, and not (as the courts and commentators have almost uniformly concluded) the Equal Protection Clause, that performed the main work of Section 1 of the Fourteenth Amendment-namely abolishing the “black codes” enacted by Southern states during Reconstruction. The article reaches this conclusion by taking the constitutional text seriously and considering its historical context carefully.

JAMES E. BOND, NO EASY WALK TO FREEDOM: RECONSTRUCTION AND RATIFICATION OF THE FOURTEENTH AMENDMENT (1997).  A comprehensive study of the Southern ratification debate over the Fourteenth Amendment, collecting information from official reports, party platforms and campaign speeches, resolutions from meetings, rallies, and conventions, editorials and letters to the editor, and private diaries and personal correspondence. Much of the documentary evidence in this book was published for the first time.

Economic Liberties

Symposium: Constitutional Protections of Economic Activity: How They Promote Individual Freedom, 11 GEO. MASON U. L. REV. 1 (1988). This Federalist Society symposium includes papers on the Takings and Contract Clauses, the First Amendment and economic activity, federal spending and the deficit as constitutional issues, and the privatization movement. Authors include Akhil Amar, Kenneth Cribb, Frank Easterbrook, Robert Ellickson, Richard Epstein, Gary Lawson, Leonard Liggio, Gale Norton, and Roger Pilon. For evidence that conservatives do not speak with a single voice in this area, compare the contributions by Epstein and Pilon (who lament the collapse of constitutional protections for economic liberties) with the article by Easterbrook (who declares that the current state of affairs “is fine”).

BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION (1980). This provocative book argues for an interpretation of constitutional provisions dealing with economic liberties that would necessitate a much greater judicial role in the area than now exists. The book describes and defends the substantive due process doctrines that developed between 1897 and 1937, and chronicles the post-1937 fall of economic substantive due process and the concurrent rise of the new substantive due process in such areas as privacy rights. It then attacks the current distinction in constitutional law between economic rights and other personal liberties and the lesser protection accorded the former. For a good critique of the Siegan approach, see Robert H. Bork, The Constitution, Original Intent, and Economic Rights, 23 SAN DIEGO L. REV. 823 (1986).

JAMES W. ELY, JR., THE GUARDIAN OF EVERY OTHER RIGHT: A CONSTITUTIONAL HISTORY OF PROPERTY RIGHTS (2d ed. 1998). This is an excellent short history of the development of the American system of property rights from colonial days through the present, emphasizing the relationship between private property and political liberty.

Michael W. McConnell, Contract Rights and Property Rights: A Case Study in the Relationship between Individual Liberties and Constitutional Structure,” 76 CALIF. L. REV. 267 (1988). Why did the Framers of the original Constitution and the Bill of Rights apply the Contract Clause only to state governments and the Takings Clause only to the federal government? In answering this question, Professor McConnell argues that constitutional interpretation should extend beyond the substantive principles expressed in the Constitution to the structural and institutional choices made by the Framers.

Michael J. Phillips, The Slow Return of Economic Substantive Due Process, 49 SYRACUSE L. REV. 917 (1999).  This article describes and evaluates what Professor Phillips describes as “economic substantive due process’s slow but steady comeback,” a reappearance he states began during the late 1970s and early 1980s. He discusses the many decisions striking down government action on economic substantive due process grounds and tries to defend these decisions against the standard charges that have long beset economic substantive due process, and to suggest ways in which the doctrine might profitably evolve.

See also AKHIL REED AMAR: THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998).

Substantive Due Process

James W. Ely, Jr.: The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process, 16 CONST. COMM. 315 (1999).  This article considers the origins of substantive due process, suggesting the concept of due process evolved as a restraint on government in American jurisprudence before the Civil War. Professor Ely argues that due process was fashioned in part to protect the rights of property owners, and that judicial decisions placing property in a subordinate constitutional category are historically unsound.

John Harrison, Substantive Due Process and the Constitutional Text, 83 VA. L. REV. 493 (1997).  Professor Harrison illuminates the constitutional textual problems inherent in the doctrine of substantive due process and urges a reassessment of the matter.

Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 MICH. L. REV. 1555 (2004).  A scathing critique of the Supreme Court’s decision in Lawrence v. Texas, striking down a Texas law against sodomy as a violation of substantive due process.  Of the Court’s extension of due process doctrine in this opinion, the authors state: “The Lawrence opinion is a tissue of sophistries embroidered with a bit of sophomoric philosophizing. It is a serious matter when the Supreme Court descends to the level of analysis displayed in this opinion, especially in a high-visibility case that all but promises future adventurism unconstrained by anything but the will of the judicial majority. This performance deserves to be condemned rather than celebrated, even by those - like us - who have no sympathy for the statute that the Court struck down.”

Contract Clause

Richard Epstein, Obligation of Contract, Heritage Guide at 171-175 (available at http://www.heritage.org/About/Bookstore/upload/85010_1.pdf).

Symposium, 55 BROOKLYN L. REV. 763 (1989). Article I, Section 10, of the Constitution provides in part: “No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . .” This law and economics conference featured papers on the Contract Clause by Henry Butler and Larry Ribstein, William Cuddy, Richard Langlois, and Ronald Rotunda. Richard A. Epstein, Toward a Revitalization of the Contract Clause, 51 U. CHI. L. REV. 703 (1984). Professor Epstein argues that the Supreme Court’s recent jurisprudence under the Contract Clause can be squared with neither the Framers’ intent nor with sound economic theory (most of the discussion is of the latter).

Douglas W. Kmiec & John O. McGinnis, The Contract Clause: A Return to the Original Understanding, 14 HASTINGS CONST. L.Q. 525 (1987). The authors trace the origins of the Contract Clause and chronicle how, until recently, it had fallen into desuetude before the Supreme Court. The article argues for reviving the Clause in its original, intended scope-but does not support prospective as well as retrospective application (as advocated by Professor Epstein). One of the sources cited by Professors Kmiec and McGinnis is BENJAMIN WRIGHT, THE CONTRACT CLAUSE OF THE CONSTITUTION (1938), which reviews the Supreme Court’s changing interpretation of the Clause through the 1930s.

Takings Clause

Douglas W. Kmiec, “Takings Clause,”Heritage Guide at 341-345 (available at http://www.heritage.org/About/Bookstore/upload/85011_1.pdf).

RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985). Takings argues that the Fifth Amendment’s text-”nor shall private property be taken for public use, without just compensation”-applies to a wide variety of government actions, the Supreme Court’s decisions to the contrary notwithstanding. Thus, it concludes that the Takings Clause constrains government with respect to zoning, tort law, taxation, and much other regulation. This book was the subject of a symposium soon after its publication, the proceedings of which were published in 41 MIAMI L. REV. 1 (1986). For an interesting review of the book, see Thomas W. Merrill, Rent Seeking and the Compensation Principle, 80 NW. U. L. REV. 1561 (1986). A subsequent article by Professor Epstein on a recent and important decision by the Supreme Court in this area is Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations, 45 STAN. L. REV. 1369 (1993). Epstein criticizes Lucas as not going far enough; for a more positive view of the case, see Douglas W. Kmiec, At Last, The Supreme Court Solves the Takings Puzzle, 19 HARV. J.L. & PUB. POL’Y 147 (1995).
 
Roger Clegg, Reclaiming the Text of the Takings Clause, 46 S.C. L. REV. 531 (1995). The Supreme Court has fashioned a three-part balancing test for determining when government actions-especially regulatory actions-that diminish the value of private property constitute a compensable “taking.” This article explains which elements of this test can and which cannot be reconciled with the text of the Takings Clause, discusses more generally the application of the text to “regulatory takings,” and calls for a “rule” rather than a “balancing” approach.

Frank Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of ‘Just Compensation’ Law, 80 HARV. L. REV. 1165 (1967). Concludes that the line drawn between compensable and noncompensable takings diverges from what considerations of fairness and utility would suggest, but that it may be the best the judiciary can do.

Matthew P. Harrington, ‘Public Use’ and the Original Understanding of the So-Called ‘Takings’ Clause, 53 HASTINGS L.J. 1245 (2002).  Professor Harrington attempts to show that efforts to find a “public use” limitation on the power of expropriation are a relatively recent misreading of the constitutional history and text. 

Miscellaneous

Are There Unenumerated Constitutional Rights?, 12 HARV. J.L. & PUB. POL’Y 1 (1989). Fifteen papers were presented at this Federalist Society symposium, addressing the Ninth Amendment, the Privileges or Immunities Clause of the Fourteenth Amendment, the right of privacy, and other issues. Authors include Kenneth Cribb, Stephen Markman, Ronald Rotunda, Antonin Scalia, Clarence Thomas, and J. Harvie Wilkinson. See also THE FRAMERS AND FUNDAMENTAL RIGHTS (Robert A. Licht, ed., 1991); Philip A. Hamburger, Natural Rights, Natural Law, and American Constitutions, 102 YALE L.J. 907 (1993).

Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 YALE L.J. 677 (1993). This article proposes a “formalistic” interpretation of the Constitution’s Article V. According to Professor Paulsen, one apparent consequence of this approach is that state ratifications of proposed amendments and applications for a Constitutional Convention can accumulate over extended periods of time. The article thus draws two surprising (to some) conclusions: the Twenty-Seventh Amendment, sent to the states by Congress in 1789 but not ratified by three-fourths of the states until 1992, is now unquestionably part of the Constitution; and Congress is obliged now to call a Constitutional Convention, unlimited in the subjects it may consider for proposed amendments, because two-thirds of the states are on record as applying to Congress for one.

Last updated October 2011

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