Balkinization: The Oxford Handbook of the U.S. Constitution

The Oxford Handbook of the U.S. Constitution

Mark Graber

Mark Tushnet, Sandy Levinson and I are happy to announce that The Oxford Handbook of the United States Constitution is now available to order at https://global.oup.com/academic/product/the-oxford-handbook-of-the-us-constitution-9780190245757?cc=us&lang=en&. The below will hopefully give people some sense of the contents and contributors.

Efforts to provide comprehensive guides to the United States Constitution date from the framing and ratification of the United States Constitution. The Federalist was the first self-conscious handbook on the United States 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 21^st century, the very structure of this text, as well as many specific entries raise questions relevant to such an inquiry. Comparing our contemporary Handbook of the United States 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 first essays in this Handbook (David Brian Robertson, Michael Les Benedict, Ken Kersch, Scot Powe, Thomas Keck), which discuss U.S. constitutional development, implicitly speak to the success of the first chapters in The Federalist, which discuss “the utility of the Union to your political prosperity.” While no essay provides a Whig history in which citizens of the United States increasingly realize the merits of their decision in 1787 to form a more consolidated regime, the absence of that discussion reflects how they have taken national union for granted for nearly one hundred and fifty years. The constitutional developments these essays consider confound the Publian hope for settled constitutional law. The Federalist Papers anticipated that U.S. constitutional developments would clarify and reduce constitutional ambiguities. The essays detail a constitutional cycle in which legal and political decisions that settle one set of constitutional issues unsettle other constitutional arrangements. The New Deal, which at least temporarily settled longstanding debates over government regulation of the national economy, generated new debates over civil liberties and the structure of the administrative state.

The Handbook’s sharp separation between political science and law in Parts II (Neil Komesar, Neal Devins, Mariah Zeisberg, Justin Crowe, Russell Muirhead and Nancy Rosenblum, Mark Tushnet, Adrian Vermeule, Jenna Bednar, Bartholomew Sparrow, Bill White) and III (Stephen Griffin, Ellen Katz, Keith Whittington, Gillian Metzger, Michael Greve) reflect 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. This Handbook diverges from many contemporary works of constitutional synthesis by including chapters that treat the Constitution in more Publian political science terms, even as the role of constitutional law is greatly expanded.

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, pay some attention to the presidency, but treat the Supreme Court as “the least dangerous branch” of the national government. 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 inasmuch as the President has exclusive power to nominate and substantial power to assure confirmation of justices sympathetic to executive power—will ride roughshod over an increasingly dysfunctional and gridlocked Congress.

Part IV’s essays on “Rights” (Julie Novkov, James Fleming and Linda McClain, Jedediah Purdy, Leslie Goldstein, Girardeau Spann, Dale Carpenter, Gerald Neuman, Winnifred Fallers Sullivan, Stephen Feldman, Carole Steiker, Paul Halliday, Matthew Fletcher, Emily Zackin, Saul Cornell) sharply differentiate this Handbook from The Federalist and the Constitution of 1789. As is well known, 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. Most contemporary citizens think rights trump policy, that rights are licenses to harm. Rights are important exceptions to powers, rather than what exists in the absence of power. 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. This Handbook is no exception.

No late eighteenth century constitutional thinker would be surprised that a future Handbook of the United States Constitution included essays on liberty, property, religion, free expression and free press, criminal procedure, habeas corpus, and the right to bear arms. Whether they would have thought an essay on autonomy necessary in light of the essay on liberty is unclear, but the conception of autonomy was well known when Publius was writing. Publius would have been far more surprised by the lack of a specific essay on the jury. This relatively scant coverage reflects the remarkable disappearance of both the civil and criminal jury trial in contemporary constitutional practice. Most citizens when the Constitution was framed regarded the jury trial as the “matrix . . . of nearly every other form of freedom.” Most contemporary elites think juries a nuisance. The vast majority of criminal cases are settled by plea bargaining. Only the rare civil case goes to trial, not least because most judges now see “case management” rather than presiding over trials as their primary responsibility.

Publius would recognize the various themes that are the subject of essays in Part V of this Handbook (Mark Brandon, Oren Gross, Wayne Moore, David Strauss, Ernest Young, John Dinan, Jamal Green, Gerard Magliocca, Vicki Jackson, Heinz Klug, Elizabeth Beaumont, Maxwell Stearns, Paul Kahn). Madison and Hamilton understood the importance of constitutionalism and constitutional law to the constitutional enterprise, and although they might have thought that constitutionalism outside the courts worthy of more than one essay. The chapter on state constitutionalism corresponds to The Federalist’s frequent invocation of “analog[ies] to your own state constitution.” Publius might nevertheless be disturbed by how constitutional incentives have historically encouraged a politics that is far more partisan and interest group driven than the framers imagined. Many contemporary works on rational choice treat eighteenth century republican notions of the public good as quaint anachronisms, to the extent they are discussed at all.

The Federalist and this Handbook put the Constitution in comparative perspective and are concerned with the constitutional status of international law. Madison would be disappointed with the extent to which the United States Constitution is no longer a model for the rest of the world. Whether he would be disappointed in that strain of “American exceptionalism” that insists that the United States has 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 dealing with conflicts between international law and the national interest were and remain unclear.

The Federalist presents a largely coherent narrative, even as experts are able to discern differences in the papers written by Hamilton and Madison. This coherence was not simply a consequence of The Federalist being written by only three persons, one of whom wrote only six of the total of 85 essays. To a fair degree, most of the commentary on the Constitution in the late eighteenth century also regarded constitutional institutions and practices as internally consistent. Anti-Federalists had sharp criticisms of the Constitution, but their criticisms were of what they identified as broader constitutional themes that were played throughout the document rather than their sense that the Judiciary established by Article III did not cohere with the Congress established by Article I. A fair degree of consensus existed among both supporters and opponents of the Constitution that the Constitution was likely to substantially increase national power, loosen significantly the immediate ties between ordinary people and elected representatives, and empower a national commercial elite at the expense of local notables. Debate in the late 1780s was over the merits of these anticipated developments.

Those who read all the essays in this 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. The essays on rights detail how contemporary citizens living in a diverse multi-racial society seek guidance on the meaning of liberty and equality from a Constitution designed for a society in which all politically relevant persons shared the same race, gender, religion and ethnicity. The essays on themes try to explain how at a time when globalization is the buzz word of the day people living in the United States can continue to be governed by a constitution meant for a society separated from the rest of the “civilized world” by a nearly impassable ocean. 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.

Posted 6:09 PM by Mark Graber [link]