front cover of Against Constitutionalism
Against Constitutionalism
Martin Loughlin
Harvard University Press, 2022

A New Statesman Book of the Year

A critical analysis of the transformation of constitutionalism from an increasingly irrelevant theory of limited government into the most influential philosophy of governance in the world today.

Constitutionalism is universally commended because it has never been precisely defined. Martin Loughlin argues that it is not some vague amalgam of liberal aspirations but a specific and deeply contentious governing philosophy. An Enlightenment idea that in the nineteenth century became America’s unique contribution to the philosophy of government, constitutionalism was by the mid-twentieth century widely regarded as an anachronism. Advocating separated powers and limited government, it was singularly unsuited to the political challenges of the times. But constitutionalism has since undergone a remarkable transformation, giving the Constitution an unprecedented role in society. Once treated as a practical instrument to regulate government, the Constitution has been raised to the status of civil religion, a symbolic representation of collective unity.

Against Constitutionalism explains why this has happened and its far-reaching consequences. Spearheaded by a “rights revolution” that subjects governmental action to comprehensive review through abstract principles, judges acquire greatly enhanced power as oracles of the regime’s “invisible constitution.” Constitutionalism is refashioned as a theory maintaining that governmental authority rests not on collective will but on adherence to abstract standards of “public reason.” And across the world the variable practices of constitutional government have been reshaped by its precepts.

Constitutionalism, Loughlin argues, now propagates the widespread belief that social progress is advanced not through politics, electoral majorities, and legislative action, but through innovative judicial interpretation. The rise of constitutionalism, commonly conflated with constitutional democracy, actually contributes to its degradation.

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front cover of Against Obligation
Against Obligation
The Multiple Sources of Authority in a Liberal Democracy
Abner S. Greene
Harvard University Press, 2012

Do citizens of a nation such as the United States have a moral duty to obey the law? Do officials, when interpreting the Constitution, have an obligation to follow what that text meant when ratified? To follow precedent? To follow what the Supreme Court today says the Constitution means?

These are questions of political obligation (for citizens) and interpretive obligation (for anyone interpreting the Constitution, often officials). Abner Greene argues that such obligations do not exist. Although citizens should obey some laws entirely, and other laws in some instances, no one has put forth a successful argument that citizens should obey all laws all the time. Greene’s case is not only “against” obligation. It is also “for” an approach he calls “permeable sovereignty”: all of our norms are on equal footing with the state’s laws. Accordingly, the state should accommodate religious, philosophical, family, or tribal norms whenever possible.

Greene shows that questions of interpretive obligation share many qualities with those of political obligation. In rejecting the view that constitutional interpreters must follow either prior or higher sources of constitutional meaning, Greene confronts and turns aside arguments similar to those offered for a moral duty of citizens to obey the law.

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front cover of The Alaska Constitution
The Alaska Constitution
Edited by University of Alaska Press
University of Alaska Press, 2020
The Alaska Constitution, ratified by the people in 1956, became operative with the proclamation of statehood on January 3, 1959. The constitution was drafted by fifty-five delegates who convened at the University of Alaska to determine the authority vested in the state legislature, executive, judiciary, and other functions of government. This conveniently sized new edition will make the Alaska State Constitution accessible to all.
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front cover of The American Constitution and Religion
The American Constitution and Religion
Richard J. Regan
Catholic University of America Press, 2013
The Supreme Court’s decisions concerning the first amendment are hotly debated, and the controversy shows no signs of abating as additional cases come before the court. Adding much-needed historical and philosophical background to the discussion, Richard J. Regan reconsiders some of the most important Supreme Court cases regarding the establishment clause and the free exercise of religion.
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front cover of The Annotated U.S. Constitution and Declaration of Independence
The Annotated U.S. Constitution and Declaration of Independence
Jack N. Rakove
Harvard University Press, 2012

Here in a newly annotated edition are the two founding documents of the United States of America: the Declaration of Independence (1776), our great revolutionary manifesto, and the Constitution (1787–88), in which “We the People” forged a new nation and built the framework for our federal republic. Together with the Bill of Rights and the Civil War amendments, these documents constitute what James Madison called our “political scriptures” and have come to define us as a people. Now a Pulitzer Prize–winning historian serves as a guide to these texts, providing historical contexts and offering interpretive commentary.

In an introductory essay written for the general reader, Jack N. Rakove provides a narrative political account of how these documents came to be written. In his commentary on the Declaration of Independence, Rakove sets the historical context for a fuller appreciation of the important preamble and the list of charges leveled against the Crown. When he glosses the Constitution, the Bill of Rights, and the subsequent amendments, Rakove once again provides helpful historical background, targets language that has proven particularly difficult or controversial, and cites leading Supreme Court cases. A chronology of events provides a framework for understanding the road to Philadelphia. The general reader will not find a better, more helpful guide to our founding documents than Jack N. Rakove.

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front cover of The Anti-Federalist
The Anti-Federalist
An Abridgment of The Complete Anti-Federalist
Abridged by Murray Dry
University of Chicago Press, 1985
Herbert J. Storing's Complete Anti-Federalist, hailed as "a civic event of enduring importance" (Leonard W. Levy, New York Times Book Review), indisputably established the importance of the Anti-Federalists' writings for our understanding of the Constitution. As Storing wrote in his introduction, "If the foundation of the American polity was laid by the Federalists, the Anti-Federalist reservations echo through American history; and it is in the dialogue, not merely in the Federalist victory, that the country's principles are to be discovered."

This one-volume edition presents the essence of the other side of that crucial dialogue. It can be read as a genuine counterpart to the Federalist Papers; as an original source companion to Storing's brilliant essay What the Anti-Federalists Were For (volume I of The Complete Anti-Federalist, available as a separate paperback); or as a guide to exploring the full range of Anti-Federalist writing. The Anti-Federalist makes a fundamental source of our political heritage accessible to everyone.
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front cover of The Anti-Oligarchy Constitution
The Anti-Oligarchy Constitution
Reconstructing the Economic Foundations of American Democracy
Joseph Fishkin and William E. Forbath
Harvard University Press, 2022

“Eminently readable, and anybody who cares about the future of American democracy in these perilous times can only hope that it will be widely read and carefully considered.”
—James Pope, Washington Post

“Fishkin and Forbath’s accessible work serves as both history lesson and political playbook, offering the Left an underutilized—and perhaps counterintuitive—tool in the present-day fight against social and economic injustice: the Constitution.”
—Benjamin Morse, Jacobin

“Aims to recover the Constitution’s pivotal role in shaping claims of justice and equality…in engaging, imaginative prose that makes even the present court’s capture by the ideological right a compelling platform for a revived social-democratic constitutional politics.”
New Republic

Oligarchy is a threat to the American republic. When too much economic and political power is concentrated in too few hands, we risk losing the “republican form of government” the Constitution requires. Today, courts enforce the Constitution as if it had almost nothing to say about this threat. But as this revolutionary retelling of constitutional history shows, a commitment to prevent oligarchy once stood at the center of a robust tradition in American political and constitutional thought.

Joseph Fishkin and William Forbath demonstrate that reformers, legislators, and even judges working in this “democracy-of-opportunity” tradition understood that the Constitution imposes a duty on legislatures to thwart oligarchy and promote a broad distribution of wealth and political power. These ideas led Jacksonians to fight special economic privileges for the few, Populists to try to break up monopoly power, and Progressives to battle for the constitutional right to form a union.

But today, as we enter a new Gilded Age, this tradition in progressive American economic and political thought lies dormant. The Anti-Oligarchy Constitution begins the work of recovering it and exploring its profound implications for our deeply unequal society and badly damaged democracy.

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