The following post is by Mark Graber, co-editor with Mark Tushnet and Sanford Levinson of the recently published Oxford Handbook of the United States Constitution.

Efforts to provide comprehensive guides to the Constitution date from the framing and ratification of the Constitution. The Federalist was the first self-conscious handbook on the Constitution.   Unlike the original and subsequent treatises or comprehensive guides, we were not motivated by a cheerleading impulse when we edited the 2015 Oxford Handbook of the U.S. Constitution. Although our Handbook contains no specific chapter on what might be termed the “adequacy” of the Constitution in the twenty-first century, the very structure of this text and many specific entries raise questions relevant to such an inquiry. Comparing our contemporary Handbook of the Constitution with the original may shed some light on the incongruities that have manifested over time as contemporary citizens of the United States employ concepts grounded in late eighteenth-century constitutional thought when operating a constitution in the early twenty-first century, as well as convincing many of you, we hope, to read the book and the many wonderful essays written by very distinguished scholars.  

The place of the Supreme Court in the contemporary constitutional universe may be the most dramatic difference from the universe described in The Federalist. The Handbook’s sharp separation between political science and law reflects the dramatic legalization of the Constitution that has taken place over the past two hundred years. Some constitutional law was inevitable as the Constitution was interpreted by judges and other political actors with constitutional authority. Publius nevertheless would have been stunned to learn that contemporary constitutional analysis focuses almost exclusively on constitutional law, constitutional interpretation, and the authority of the Supreme Court to be the “ultimate interpreter” of the Constitution and, therefore, to resolve almost all constitutional disputes.

The essays in Part I address the unanticipated substantial role the Supreme Court and constitutional law have played in American constitutional development. Judicial decision making from Marbury v. Madison (1803) to Obergefell v. Hodges (2015) confounds the Publian hope for settled constitutional law. The Federalist Papers anticipated that U.S. constitutional developments would follow the British model and consist of political settlements that clarified constitutional ambiguities.   The essays detail a constitutional cycle in which the Supreme Court has played a fundamental role in clarifying constitutional ambiguities in ways that settle one set of issues and unsettle others. New Deal decisions at least temporarily settled longstanding debates over government regulation of the national economy, but generated new debates over the judicial role in protecting civil liberties and overseeing the administrative state.

Both the late eighteenth-century and early twenty-first-century handbooks contain essays on the national executive, Congress, the federal judiciary, and federalism, but the balance and structure of the twenty-first-century essays differ from their Publian counterparts. In keeping with late eighteenth-century constitutional thinking, the Constitution of 1787 and The Federalist Papers focus primarily on the national legislature and pay some attention to the presidency, but treat the Supreme Court as “the least dangerous branch” of the national government. Parts II and III of the Handbook detail how the Publian concern with Congress overpowering other national institutions has been replaced by concerns that the president or Supreme Court — or perhaps both, acting in concert — will ride roughshod over an increasingly dysfunctional and gridlocked Congress. Whereas Publius made predictions about how such practices as federalism and presidentialism would function, those predictions in our volume have largely been replaced by analysis of the constitutional law the Supreme Court has made. When Madison in Federalist 51 explored the relationships between Congress and the presidency, he relied on a politicized version of Newton’s laws of motion. When Stephen Griffin in our volume asks “to what extent can Congress . . . regulate the president’s powers,” he first turns to “the Supreme Court’s executive power jurisprudence.”

Part IV’s essays on “Rights” sharply differentiate this Handbook from The Federalist and the Constitution of 1789. Hamilton in Federalist 84 insisted that enumerating constitutional rights was useless, impossible and dangerous. A Constitution that solved the powers issue solved the rights issue. Following Jefferson and Madison, Americans believe that a Bill of Rights empowers courts to protect the rights of individuals, although which individual courts should protect has been the subject of a more than two-hundred-year debate.   As this conception of rights has come to dominate the constitutional mind, more and more space in constitutional treatises, casebooks, and the like are devoted to the Bill of Rights and post-Civil War Amendments. Our Handbook is no exception. Detailed essays analyze the changing jurisprudence of the Supreme Court on equality, liberty, property, gender, race, autonomy, citizenship, religion, free speech, criminal procedure, habeas corpus, Native Americans, the right to bear arms, and positive rights (the last being largely a state constitutional phenomenon).

Publius would recognize the various themes that are the subject of essays on constitutionalism in Part V of the Handbook. Madison and Hamilton might have thought that constitutionalism outside the courts worthy of more than one essay. Publius might nevertheless be disturbed by how constitutional incentives have historically encouraged a politics that often substitutes constitutional litigation for constitutional politics. Publius would be disappointed with the extent to which the Constitution and the Supreme Court are no longer a models for the rest of the world. Whether he would be disappointed in that strain of “American exceptionalism” that insists that federal courts have nothing to learn from the constitutional experiences of other countries is less clear.   The framers clearly wanted a national government that respected the law of nations, but their instructions about how courts should integrate the international law into their constitutional jurisprudence were and remain unclear.

Most of the commentary on the Constitution in the late eighteenth century regarded constitutional institutions and practices as internally consistent. Those who read all the essays in our Handbook may well wonder whether any constitutional coherence remains. The essays on political science detail how contemporary citizens in the United States rely extensively on political parties, interest groups, and bureaucrats to operate a constitution designed to prevent the rise of parties, interest-group politics and an entrenched bureaucracy. The essays on law detail how contemporary citizens appear to expect — and substantially to accept — exertions of power by a Supreme Court whose members are increasingly disconnected from the world of practical politics, that limit, in the name of the Constitution, institutions designed to be limited primarily by their internal structure. Whether a return to the pristine constitutional institutions of the founding or a translation of these constitutional norms in the present is possible remains the central challenge of U.S. constitutionalism.

 

 

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Recommended Citation: , The 2015 Oxford Handbook of the U.S. Constitution, SCOTUSblog (Aug. 7, 2015, 10:41 AM), https://www.scotusblog.com/2015/08/the-2015-oxford-handbook-of-the-u-s-constitution/