A stunning revision of our founding document's evolving history that forces us to confront anew the question that animated the founders so long ago: What is our Constitution? Americans widely believe that the United States Constitution was created when it was drafted in 1787 and ratified in 1788. But in a shrewd rereading of the Founding era, Jonathan Gienapp upends this long-held assumption, recovering the unknown story of American constitutional creation in the decade after its adoption?a story with explosive implications for current debates over constitutional originalism and interpretation. When the Constitution first appeared, it was shrouded in uncertainty. Not only was its meaning unclear, but so too was its essential nature. Was the American Constitution a written text, or something else? Was it a legal text? Was it finished or unfinished? What rules would guide its interpretation? Who would adjudicate competing readings? As political leaders put the Constitution to work, none of these questions had answers. Through vigorous debates they confronted the document's uncertainty, and?over time?how these leaders imagined the Constitution radically changed. They had begun trying to fix, or resolve, an imperfect document, but they ended up fixing, or cementing, a very particular notion of the Constitution as a distinctively textual and historical artifact circumscribed in space and time. This means that some of the Constitution's most definitive characteristics, ones which are often treated as innate, were only added later and were thus contingent and optional.
In this revised and updated second edition of The Dynamic Constitution, Richard H. Fallon, Jr provides an engaging, sophisticated introduction to American constitutional law. Suitable for lawyers and non-lawyers alike, this book discusses contemporary constitutional doctrine involving such issues as freedom of speech, freedom of religion, rights to privacy and sexual autonomy, the death penalty, and the powers of Congress. Through examples of Supreme Court cases and portraits of past and present Justices, this book dramatizes the historical and cultural factors that have shaped constitutional law. The Dynamic Constitution, 2nd edition, combines detailed explication of current doctrine with insightful analysis of the political culture and theoretical debates in which constitutional practice is situated. Professor Fallon uses insights from political science to explain some aspects of constitutional evolution and emphasizes features of the judicial process that distinguish constitutional law from ordinary politics.
Since the Constitution's ratification, members of Congress, following Article V, have proposed approximately twelve thousand amendments, and states have filed several hundred petitions with Congress for the convening of a constitutional convention. Only twenty-seven amendments have been approved in 225 years. Why do members of Congress continue to introduce amendments at a pace of almost two hundred a year? This book is a demonstration of how social reformers and politicians have used the amendment process to achieve favorable political results even as their proposed amendments have failed to be adopted. For example, the ERA "failed" in the sense that it was never ratified, but the mobilization to ratify the ERA helped build the feminist movement (and also sparked a countermobilization). Similarly, the Supreme Court's ban on compulsory school prayer led to a barrage of proposed amendments to reverse the Court. They failed to achieve the requisite two-thirds support from Congress, but nevertheless had an impact on the political landscape. The definition of the relationship between Congress and the President in the conduct of foreign policy can also be traced directly to failed efforts to amend the Constitution during the Cold War. Roger Hartley examines familiar examples like the ERA, balanced budget amendment proposals, and pro-life attempts to overturn Roe v. Wade, but also takes the reader on a three-century tour of lesser-known amendments. He explains how often the mere threat of calling a constitutional convention (at which anything could happen) effected political change.
In 1987, E.L. Doctorow celebrated the Constitution's bicentennial by reading it. "It is five thousand words long but reads like fifty thousand," he said. Distinguished legal scholar Garrett Epps--himself an award-winning novelist--disagrees. It's about 7,500 words. And Doctorow "missed a good deal of high rhetoric, many literary tropes, and even a trace of, if not wit, at least irony," he writes. Americans may venerate the Constitution, "but all too seldom is it read." In American Epic, Epps takes us through a complete reading of the Constitution--even the "boring" parts--to achieve an appreciation of its power and a holistic understanding of what it says. In this book he seeks not to provide a definitive interpretation, but to listen to the language and ponder its meaning. He draws on four modes of reading: scriptural, legal, lyric, and epic. The Constitution's first three words, for example, sound spiritual--but Epps finds them to be more aspirational than prayer-like. "Prayers are addressed to someone . . . either an earthly king or a divine lord, and great care is taken to name the addressee. . . . This does the reverse. The speaker is 'the people,' the words addressed to the world at large." He turns the Second Amendment into a poem to illuminate its ambiguity. He notices oddities and omissions. The Constitution lays out rules for presidential appointment of officers, for example, but not removal. Should the Senate approve each firing? Can it withdraw its "advice and consent" and force a resignation? And he challenges himself, as seen in his surprising discussion of the Defense of Marriage Act (DOMA) in light of Article 4, which orders states to give "full faith and credit" to the acts of other states. Wry, original, and surprising, American Epic is a scholarly and literary tour de force.
The fundamental importance of the 1787 Constitutional Convention continues to affect contemporary politics. The Constitution defines the structure and limits of the American system of government, and it organizes contemporary debates about policy and legal issues--debates that explicitly invoke the intentions and actions of those delegates to the Convention. Virtually all scholarship emphasizes the importance of compromise between key actors or factions at the Convention. In truth, the deep structure of voting at the Convention remains somewhat murky because the traditional stories are incomplete. There were three key factions at the Convention, not two. The alliance of the core reformers with the slave interests helped change representation and make a stronger national government. When it came time to create a strong executive, a group of small state delegates provided the crucial votes. Traditional accounts gloss over the complicated coalition politics that produced these important compromises, while this book shows the specific voting alignments. It is true that the delegates came with common purposes, but they were divided by both interests and ideas into three crosscutting factions. There was no persistent dominant coalition of reformers or nationalists; rather, there was a series of minority factions allying with one another on the major issues to fashion the compromise. Founding Factions helps us understand the nature of shifting majorities and how they created the American government.
A favorite classroom prep tool of successful students that is often recommended by professors, the Examples & Explanations (E&E) series provides an alternative perspective to help you understand your casebook and in-class lectures. Each E&E offers hypothetical questions complemented by detailed explanations that allow you to test your knowledge of the topics in your courses and compare your own analysis. Here's why you need an E&E to help you study throughout the semester: Clear explanations of each class topic, in a conversational, funny style. Features hypotheticals similar to those presented in class, with corresponding analysis so you can use them during the semester to test your understanding, and again at exam time to help you review. It offers coverage that works with ALL the major casebooks, and suits any class on a given topic. The Examples & Explanations series has been ranked the most popular study aid among law students because it is equally as helpful from the first day of class through the final exam.
Examples & Explanations: Constitutional Law: National Power and Federalism features straightforward, informal text that is never simplistic. Its unique, time-tested Examples & Explanations pedagogy combines textual material with well-written and comprehensive examples, explanations, and questions. A problem-oriented guide, it takes students through the principal doctrines of constitutional law covered in a typical course. The unique, time-tested Examples & Explanations series is invaluable for students learning the subject from the first day of class until the last review before the final exam. Each guide: Presents relevant case law in a conversational style laced with humor Provides hypotheticals similar to those presented in class Helps students learn new material by working through chapters that explain each topic in simple language Provides valuable opportunity to study for the final exam by reviewing the hypotheticals as well as the structure and reasoning behind the corresponding analysis Works with all the major casebooks and suits any class on a given topic Remains a favorite among law school students and is often recommended by professors New to the Eighth Edition: Updated examples and explanations Roughly 25 important new decisions from the Supreme Court's 2016, 2017, and 2018 terms such as Trump v. Hawaii; South Dakota v. Wayfair, Inc.; Sessions v. Morales-Santana; Minnesota Voters Alliance v. Mansky; Murphy v. NCAA; Patchak v. Zinke; Trinity Lutheran Church of Columbia, Inc. v. Comer