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Monday, September 18, 2006

Research Canons: Constitutional Law

Our next subject matter for the research canons project is Constitutional Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.

Constitutional Law is a fairly broad field.  I have added a category for Federal Courts/Civil Rights on October 4.  Beyond that, you may want to specify how your suggestions fit into the field as a whole.  New Con Law scholars may find a discussion of the different areas of study to be useful as well.  What does it mean to say that you are a Con Law scholar?

Posted by Matt Bodie on September 18, 2006 at 07:34 AM in Research Canons | Permalink


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I've updated my bibliography for 'constitutionalism' that is found at Larry Solum's Legal Theory blog and can send it to anyone interested.

Posted by: Patrick S. O'Donnell | Feb 24, 2007 12:07:15 AM

I'll add Stephen Breyer's Active Liberty and Antonin Scalia's A Matter of Interpretation to this list, particulary for those interested in the current court's constitutional interpretation ideologies. Each carries a part devoted to the special cases of constitutions.

Posted by: Richard | Oct 17, 2006 1:17:13 PM

I would like to suggest that L. Tribe's *American Constitutional Law* serves as a solid resource/reference book, particularly for the new Con Law teacher. I find recently that I turn again and again to C. Sunstein's *The Partial Constitution*. Also, *Story on the Constitution* still has its place.

Thank you for this project; though the lists may run long, the good intent is appreciated.

Posted by: Nicole Huberfeld | Sep 19, 2006 2:44:10 PM

Ely, Robert Hart, Democracy and Distrust

Posted by: Alan Tauber | Sep 18, 2006 11:28:32 PM

And I would add to the above Richard H. Fallon's Implementing the Constitution. Cambridge, MA: Harvard University Press, 2001.

Posted by: Patrick S. O'Donnell | Sep 18, 2006 5:26:24 PM

Again, I’m no expert, so it would be nice if those with the requisite expertise could assess the following titles culled from my bibliography for philosophy of law and legal theory:

Alexander, Larry, ed. Constitutionalism: Philosophical Foundations. Cambridge, UK: Cambridge University Press, 1998.

Allan, T.R. S. Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism. Oxford, UK: Clarendon Press, 1993.

Allan, T.R.S. Constitutional Justice: A Liberal Theory of the Rule of Law. New York: Oxford University Press, 2001.

Barnett, Randy E. The Structure of Liberty: Justice and the Rule of Law. Oxford, UK: Clarendon Press, 1998.

Barnett, Randy E. Restoring the Lost Constitution: The Presumption of Liberty. Princeton, NJ: Princeton University Press, 2004.

Bobbitt, Philip. Constitutional Fate: Theory of the Constitution. New York: Oxford University Press, 1982.

Bobbitt, Philip. Constitutional Interpretation. New York: Oxford University Press, revised ed., 2006.

Devins, Neal and Keith E. Whittington, eds. Congress and the Constitution. Durham, NC: Duke University Press, 2005.

Dworkin, Ronald. Taking Rights Seriously. London: Duckworth, 1977.

Elster, Jon and Rune Slagstad, eds. Constitutionalism and Democracy. Cambridge, UK: Cambridge University Press, 1988.

Hardin, Russell. Liberalism, Constitutionalism, and Democracy. New York: Oxford University Press, 1999.

Holmes, Stephen. Passions & Constraint: On the Theory of Liberal Democracy. Chicago, IL: University of Chicago Press, 1995.

McIlwain, Charles Howard. Constitutionalism: Ancient and Modern. Ithaca, NY: Cornell University Press, rev. ed., 1947.

Pickerill, J. Mitchell. Constitutional Deliberation in Congress. Durham, NC: Duke University Press, 2004.

Sager, Lawrence G. Justice in Plainclothes: A Theory of American Constitutional Practice. New Haven, CT: Yale University Press, 2004.

Tushnet, Mark. The New Constitutional Order. Princeton, NJ: Princeton University Press, 2003.

Whittington, Keith E. Constitutional Construction: Divided Powers and Constitutional Meaning. Cambridge, MA: Harvard University Press, 1999.

Whittington, Keith E. Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. Lawrence, KS: University Press of Kansas, 1999.

[For what it's worth, I'm particularly fond of the Sager book, and have learned much from Barnett, Bobbitt, Dworkin and Holmes.]

The following I’ve found useful as references and resources in one way or another (again, it would help to hear what those who teach in this area think):

Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction. New Haven, CT: Yale University Press, 1998.

Chemerinsky, Erwin. Constitutional Law: Principles and Policies. New York: Aspen, 2nd ed., 2002.

Cooke, Edward F. A Detailed Analysis of the Constitution. Lanham, MD: Rowman & Littlefield, 7th ed., 2002.

Lieberman, Jethro K. A Practical Companion to the Constitution: How the Supreme Court Has Ruled on Issues from Abortion to Zoning. Berkeley, CA University of California Press, 1999, expanded ed.

Rakove, Jack N. Original Meanings: Politics and Ideas in the Making of the Constitution. New York: Alfred A. Knop, 1996.

Sunstein, Cass R. Designing Democracies: What Constitutions Do. New York: Oxford University Press, 2001.

Posted by: Patrick S. O'Donnell | Sep 18, 2006 12:08:45 PM

Can I recommend Laura Kalman's account of the debate between Tribe and Ackerman in The Strange Career of Legal Liberalism (toward the end)? It's a wonderfully clear (and opinionated) account of two very different ways of looking at constitutional interpretation.

Posted by: Frank Pasquale | Sep 18, 2006 11:10:17 AM

I'm hardly a constitutional law scholar but some books that I've found to be useful are the following:
Dahl, _How Democratic is the American Constitution?_ It's probably not sophisticated enough to really be considered canonical in this area (it seems to be pitched primarily towards undergrads) but it's very useful in summing up the undemocratic (on one sense of that idea) elements in the constitution.

Beard, _An Economic Interpritation of the Constitution of the United States_. It's old now but still useful and interesting.

R. Dworkin, "Constitutional Cases" in _Taking Rights Seriously_. More than most of the articles in _Freedom's Law_ Dworkin here gives a good account of his approach to constitutional law and shows an alternative to originalism that I find quite attractive.

Posted by: Matt | Sep 18, 2006 10:14:36 AM

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