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 21st 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.