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The Constitution of Empire: Territorial Expansion and American Legal History

Gary Lawson and Guy Seidman

This book offers a constitutional and historical survey of American territorial expansion from the founding era to the present day. The authors describe the Constitution's design for territorial ... More

This book offers a constitutional and historical survey of American territorial expansion from the founding era to the present day. The authors describe the Constitution's design for territorial acquisition and governance, and examine the ways in which practice over the past two hundred years has diverged from that original vision. Noting that most of America's territorial acquisitions—including the Louisiana Purchase, the Alaska Purchase, and the territory acquired after the Mexican–American and Spanish–American wars—resulted from treaties, they elaborate a Jeffersonian-based theory of the federal treaty power and assess American territorial acquisitions from this perspective. The authors find that at least one American acquisition of territory and many of the basic institutions of territorial governance have no constitutional foundation, and explore the often strange paths which constitutional law has traveled to permit such deviations from the Constitution's original meaning.Less

Constitutional Cliffhangers

Brian C. Kalt

The United States Constitution's provisions for selecting, replacing, and punishing presidents contain serious weaknesses that could lead to constitutional controversies. This book envisions six such ... More

The United States Constitution's provisions for selecting, replacing, and punishing presidents contain serious weaknesses that could lead to constitutional controversies. This book envisions six such controversies, such as the criminal prosecution of a sitting president, a two-term president's attempt to stay in power, the ousting of an allegedly disabled president, and more. None of these things has ever occurred, but in recent years many of them almost have. Besides being individually dramatic, these controversies provide an opportunity to think about how constitutional procedures can best be designed, interpreted, and repaired. Also, because the events described would all carry enormous political consequences, they shed light on the delicate and complicated balance between law and politics in American government.Less

Constitutional Courts and Democratic Values: A European Perspective

Victor Ferreres Comella

This book contrasts the European “centralized” constitutional court model, in which one court system is used to adjudicate constitutional questions, with a decentralized model, such as that of the ... More

This book contrasts the European “centralized” constitutional court model, in which one court system is used to adjudicate constitutional questions, with a decentralized model, such as that of the United States, in which courts deal with both constitutional and nonconstitutional questions. The book's systematic exploration of the reasons for and against the creation of constitutional courts is detailed and it offers an ambitious theory to justify the European preference for them. Based on extensive research on eighteen European countries, the book finds that centralized review fits well with the civil law tradition and structures of ordinary adjudication in those countries. It concludes that, while the decentralized model works for the United States, there is more than one way to preserve democratic values and that these values are best preserved in the parliamentary democracies of Europe through constitutional courts.Less

Democracy and the Origins of the American Regulatory State

Samuel DeCanio

This book examines how political elites used high levels of voter ignorance to create a new sort of regulatory state with lasting implications for American politics. Focusing on the expansion of ... More

This book examines how political elites used high levels of voter ignorance to create a new sort of regulatory state with lasting implications for American politics. Focusing on the expansion of bureaucratic authority in late-nineteenth-century America, the book's archival research examines electoral politics, the Treasury Department's control over monetary policy, and the Interstate Commerce Commission's regulation of railroads to examine how conservative politicians created a new type of bureaucratic state to insulate policy decisions from popular control.Less

Eloquence and Reason: Creating a First Amendment Culture

Robert L. Tsai

This book presents a theory of the First Amendment's development. During the twentieth century, Americans gained trust in its commitments, turned the First Amendment into an instrument for social ... More

This book presents a theory of the First Amendment's development. During the twentieth century, Americans gained trust in its commitments, turned the First Amendment into an instrument for social progress, and exercised their rhetorical freedom to create a common language of rights. The book explains that the guarantees of the First Amendment have become part of a governing culture and nationwide priority. Examining the rhetorical tactics of activists, presidents, and lawyers, it illustrates how committed citizens seek to promote or destabilize a convergence in constitutional ideas. The book reveals the social and institutional processes through which foundational ideas are generated and defends a cultural role for the courts.Less

The Future of Law and Economics: Essays in Reform and Recollection

Guido Calabresi

In a concise, compelling argument, one of the founders and most influential advocates of the law and economics movement divides the subject into two separate areas, which are identified with Jeremy ... More

In a concise, compelling argument, one of the founders and most influential advocates of the law and economics movement divides the subject into two separate areas, which are identified with Jeremy Bentham and John Stuart Mill. The first, Benthamite, strain, “economic analysis of law,” examines the legal system in the light of economic theory and shows how economics might render law more effective. The second strain, law and economics, gives equal status to law, and explores how the more realistic, less theoretical discipline of law can lead to improvements in economic theory. It is the latter approach that this book advocates.Less

Imperial from the Beginning: The Constitution of the Original Executive

Saikrishna Bangalore Prakash

This book offers the first truly comprehensive study of the original American presidency. Drawing from a vast range of sources both well-known and obscure, the book reconstructs the powers and duties ... More

This book offers the first truly comprehensive study of the original American presidency. Drawing from a vast range of sources both well-known and obscure, the book reconstructs the powers and duties of the nation's chief executive at the Constitution's founding. Among other subjects, the author examines the term and structure of the office of the president, the president's power as constitutional executor of the law, foreign policy authority, role as commander in chief, authority during emergencies, and relations with the U.S. Congress, the courts, and the states. This ambitious and even-handed analysis counters numerous misconceptions about the presidency and fairly demonstrates that the office has long been regarded as monarchical.Less

Interpreting the Bible and the Constitution

Jaroslav Pelikan

Both the Bible and the Constitution have the status of “Great Code,” but each of these important texts is controversial as well as enigmatic. They are asked to speak to situations that their authors ... More

Both the Bible and the Constitution have the status of “Great Code,” but each of these important texts is controversial as well as enigmatic. They are asked to speak to situations that their authors could not have anticipated on their own. The author of this book, a religious historian, brings his vast knowledge of the history of biblical interpretation to bear on the question of constitutional interpretation. He compares the methods by which the official interpreters of the Bible and the Constitution—the Christian Church and the Supreme Court, respectively—have approached the necessity of interpreting, and reinterpreting, their important texts. The author observes that, in spite of obvious differences, both texts require close, word-by-word exegesis, an awareness of opinions which have gone before, and a willingness to ask new questions of old codes. He probes for answers to the question of what makes something authentically “constitutional” or “biblical,” and demonstrates how an understanding of either biblical interpretation or constitutional interpretation can illuminate the other in important ways.Less

Justice and Empathy: Toward a Constitutional Ideal

Robert A. Burt

Frank Iacobucci (ed.)

The Supreme Court long considered its highest mission to be the protection of individual liberty from intrusion by government, but the court shifted its focus to social and economic equality. This ... More

The Supreme Court long considered its highest mission to be the protection of individual liberty from intrusion by government, but the court shifted its focus to social and economic equality. This book explores this shift and its implications, especially for the legal protection of the vulnerable. Crucial to the author's perspective is an unconventional view of the role of judges—not simply to decide disputes, but to promote a respectful dialogue leading to a genuine understanding between parties. The U.S. Constitution, through its interpretation by the U.S. Supreme Court, deals with the protection of vulnerable people in American society. It focuses on the judge not as the sole determiner of equality or protection but as a leader who, through careful observation and guidance, promotes an interactive process among the parties in order to settle the matter in an empathic, mutually respectful way. The book points out that judges are not the only actors through whom democratic values founded on empathic mutual respect and accountability can be promoted. At the center of this study is the Civil Rights Act of 1968.Less

Making the Case: The Art of the Judicial Opinion

Paul W. Kahn

This book introduces law students to the art of reading judicial opinions. At the same time, it offers an innovative theory of the nature of legal argument, emphasizing the roles of rhetoric, ... More

This book introduces law students to the art of reading judicial opinions. At the same time, it offers an innovative theory of the nature of legal argument, emphasizing the roles of rhetoric, narrative, voice, persuasion, and context. Separate chapters deal with the development of legal doctrine and the way in which facts operate as the context or horizon against which legal claims are understood. The book defends a humanist approach to law, which is a necessary complement to the dominant social science approach.Less

The Mythic Meanings of the Second Amendment: Taming Political Violence in a Constitutional Republic

David C. Williams

The Second Amendment, which concerns the right of the people to keep and bear arms, has been the subject of great debate for decades. Does it protect an individual's right to arms or only the right ... More

The Second Amendment, which concerns the right of the people to keep and bear arms, has been the subject of great debate for decades. Does it protect an individual's right to arms or only the right of the states to maintain militias? This book offers a new reading of the Second Amendment: that it guarantees to individuals a right to arms only insofar as they are part of a united and consensual people, so that their uprising can be a unified revolution rather than a civil war. The author argues that the Second Amendment has been based on myths about America—the Framers' belief in American unity and modern interpreters' belief in American distrust and disunity. Neither of these myths, however, will adequately curb political violence. The author suggests that the amendment should serve not as a rule of law but as a cultural ideal which promotes our unity on the use of political violence and celebrates our diversity in other areas of life.Less

The Unitary Executive: Presidential Power from Washington to Bush

Steven G. Calabresi and Christopher S. Yoo

This book undertakes a detailed historical and legal examination of presidential power and the theory of the unitary executive. This theory—that the Constitution gives the president the power to ... More

This book undertakes a detailed historical and legal examination of presidential power and the theory of the unitary executive. This theory—that the Constitution gives the president the power to remove and control all policy-making subordinates in the executive branch—has been the subject of heated debate since the Reagan years. To determine whether the Constitution creates a strongly unitary executive, the authors look at the actual practice of all forty-three presidential administrations, from George Washington to George W. Bush. They argue that all presidents have been committed proponents of the theory of the unitary executive, and explore the meaning and implications of this finding.Less