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Rationing the Constitution
How Judicial Capacity Shapes Supreme Court Decision-Making
Andrew Coan
Harvard University Press, 2019

In this groundbreaking analysis of Supreme Court decision-making, Andrew Coan explains how judicial caseload shapes the course of American constitutional law and the role of the Court in American society.

Compared with the vast machinery surrounding Congress and the president, the Supreme Court is a tiny institution that can resolve only a small fraction of the constitutional issues that arise in any given year. Rationing the Constitution shows that this simple yet frequently ignored fact is essential to understanding how the Supreme Court makes constitutional law.

Due to the structural organization of the judiciary and certain widely shared professional norms, the capacity of the Supreme Court to review lower-court decisions is severely limited. From this fact, Andrew Coan develops a novel and arresting theory of Supreme Court decision-making. In deciding cases, the Court must not invite more litigation than it can handle. On many of the most important constitutional questions—touching on federalism, the separation of powers, and individual rights—this constraint creates a strong pressure to adopt hard-edged categorical rules, or defer to the political process, or both.

The implications for U.S. constitutional law are profound. Lawyers, academics, and social activists pursuing social reform through the courts must consider whether their goals can be accomplished within the constraints of judicial capacity. Often the answer will be no. The limits of judicial capacity also substantially constrain the Court’s much touted—and frequently lamented—power to overrule democratic majorities. As Rationing the Constitution demonstrates, the Supreme Court is David, not Goliath.

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Reclaiming Accountability
Transparency, Executive Power, and the U.S. Constitution
Heidi Kitrosser
University of Chicago Press, 2014
Americans tend to believe in government that is transparent and accountable. Those who govern us work for us, and therefore they must also answer to us. But how do we reconcile calls for greater accountability with the competing need for secrecy, especially in matters of national security? Those two imperatives are usually taken to be antithetical, but Heidi Kitrosser argues convincingly that this is not the case—and that our concern ought to lie not with secrecy, but with the sort of unchecked secrecy that can result from “presidentialism,” or constitutional arguments for broad executive control of information.
           
In Reclaiming Accountability, Kitrosser traces presidentialism from its start as part of a decades-old legal movement through its appearance during the Bush and Obama administrations, demonstrating its effects on secrecy throughout. Taking readers through the key presidentialist arguments—including “supremacy” and “unitary executive theory”—she explains how these arguments misread the Constitution in a way that is profoundly at odds with democratic principles. Kitrosser’s own reading offers a powerful corrective, showing how the Constitution provides myriad tools, including the power of Congress and the courts to enforce checks on presidential power, through which we could reclaim government accountability.
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Reconsidering the Insular Cases
The Past and Future of the American Empire
Gerald L. Neuman
Harvard University Press, 2015
Over a century has passed since the United States Supreme Court decided a series of cases, known as the “Insular Cases,” that limited the applicability of constitutional rights in Puerto Rico and other overseas territories and allowed the United States to hold them indefinitely as subordinated possessions without the promise of representation or statehood. Essays in this volume, which originated in a Harvard Law School conference, reconsider the Insular Cases. Leading legal authorities examine the history and legacy of the cases, which are tinged with outdated notions of race and empire, and explore possible solutions for the dilemmas they created. Reconsidering the Insular Cases is particularly timely in light of the latest referendum in Puerto Rico expressing widespread dissatisfaction with its current form of governance, and litigation by American Samoans challenging their unequal citizenship status. This book gives voice to a neglected aspect of U.S. history and constitutional law and provides a rich context for rethinking notions of sovereignty, citizenship, race, and place, as well as the roles of law and politics in shaping them.
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Reconstructing Reconstruction
The Supreme Court and the Production of Historical Truth
Pamela Brandwein
Duke University Press, 1999
Was slavery over when slaves gained formal emancipation? Was it over when the social, economic, and political situation for African Americans no longer mimicked the conditions of slavery? If the Thirteenth Amendment abolished it in 1865, why did most of the disputed points during the Reconstruction debates of 1866–75 concern issues of slavery? In this book Pamela Brandwein examines the post–Civil War struggle between competing political and legal interpretations of slavery and Reconstruction to reveal how accepted historical truth was established.
Delving into the circumstances, assumptions, and rhetoric that shaped the “official” story of Reconstruction, Brandwein describes precisely how a dominant interpretation of events ultimately emerged and what its implications have been for twentieth-century judicial decisions, particularly for Supreme Court rulings on civil rights. While analyzing interpretive disputes about slavery, Brandwein offers a detailed rescoring of post–Civil War legislative and constitutional history, including analysis of the original understanding of the Fourteenth Amendment. She identifies the perspectives on Reconstruction that were endorsed or rejected by the Supreme Court. Explaining what it meant—theoretically and practically—to resolve Reconstruction debates with a particular definition of slavery, Brandwein recounts how the Northern Democratic definition of “ending” slavery was not the only definition, just the one that prevailed. Using a familiar historical moment to do new interpretive work, she outlines a sociology of constitutional law, showing how subjective narrative construction can solidify into opaque institutional memory.
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Reconstructing the National Bank Controversy
Politics and Law in the Early American Republic
Eric Lomazoff
University of Chicago Press, 2018
The Bank of the United States sparked several rounds of intense debate over the meaning of the Constitution’s Necessary and Proper Clause, which authorizes the federal government to make laws that are “necessary” for exercising its other powers. Our standard account of the national bank controversy, however, is incomplete. The controversy was much more dynamic than a two-sided debate over a single constitutional provision and was shaped as much by politics as by law.

With Reconstructing the National Bank Controversy, Eric Lomazoff offers a far more robust account of the constitutional politics of national banking between 1791 and 1832. During that time, three forces—changes within the Bank itself, growing tension over federal power within the Republican coalition, and the endurance of monetary turmoil beyond the War of 1812 —drove the development of our first major debate over the scope of federal power at least as much as the formal dimensions of the Constitution or the absence of a shared legal definition for the word “necessary.” These three forces—sometimes alone, sometimes in combination—repeatedly reshaped the terms on which the Bank’s constitutionality was contested. Lomazoff documents how these three dimensions of the polity changed over time and traces the manner in which they periodically led federal officials to adjust their claims about the Bank’s constitutionality. This includes the emergence of the Coinage Clause—which gives Congress power to “coin money, regulate the value thereof”—as a novel justification for the institution. He concludes the book by explaining why a more robust account of the national bank controversy can help us understand the constitutional basis for modern American monetary politics.
 
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The Reconstruction Amendments
The Essential Documents, Volume 1
Edited by Kurt T. Lash
University of Chicago Press, 2021
Ratified in the years immediately following the American Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution—together known as the Reconstruction Amendments—abolished slavery, safeguarded a set of basic national liberties, and expanded the right to vote, respectively. This two-volume work presents the key speeches, debates, and public dialogues that surrounded the adoption of the three amendments, allowing us to more fully experience how they reshaped the nature of American life and freedom.

            Volume I outlines a broad historical context for the Reconstruction Amendments and contains materials related to the Thirteenth Amendment, which abolished slavery, while Volume 2 covers the Fourteenth and Fifteenth Amendments on the rights of citizenship and enfranchisement. The documents in this collection encompass a sweeping range of primary sources, from congressional debates to court cases, public speeches to newspaper articles. As a whole, the volumes meticulously depict a significant period of legal change even as they illuminate the ways in which people across the land grappled with the process of constitutional reconstruction. Filling a major gap in the literature on the era, The Reconstruction Amendments will be indispensable for readers in politics, history, and law, as well as anyone seeking a better understanding of the post–Civil War basis of American constitutional democracy.
 
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The Reconstruction Amendments
The Essential Documents, Volume 2
Edited by Kurt T. Lash
University of Chicago Press, 2021
Ratified in the years immediately following the American Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution—together known as the Reconstruction Amendments—abolished slavery, safeguarded a set of basic national liberties, and expanded the right to vote, respectively. This two-volume work presents the key speeches, debates, and public dialogues that surrounded the adoption of the three amendments, allowing us to more fully experience how they reshaped the nature of American life and freedom.

            Volume I outlines a broad historical context for the Reconstruction Amendments along with materials related to the Thirteenth Amendment, which abolished slavery, while Volume II covers the Fourteenth and Fifteenth Amendments on the rights of citizenship and enfranchisement. The documents in this collection encompass a sweeping range of primary sources, from congressional talks to court cases, public speeches to newspaper articles. As a whole, the volumes meticulously depict a significant period of legal change even as they illuminate the ways in which people across the land grappled with the process of constitutional reconstruction. Filling a major gap in the literature on the era, The Reconstruction Amendments will be indispensable for readers in politics, history, and law, as well as anyone seeking a better understanding of the post–Civil War basis of American constitutional democracy.
 
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Regulatory Rights
Supreme Court Activism, the Public Interest, and the Making of Constitutional Law
Larry Yackle
University of Chicago Press, 2007
We often hear—with particular frequency during recent Supreme Court nomination hearings—that justices should not create constitutional rights, but should instead enforce the rights that the Constitution enshrines. In Regulatory Rights, Larry Yackle sets out to convince readers that such arguments fundamentally misconceive both the work that justices do and the character of the American Constitution in whose name they do it.  It matters who sits on the Supreme Court, he argues, precisely because justices do create individual constitutional rights.

Traversing a wide range of Supreme Court decisions that established crucial precedents about racial discrimination, the death penalty, and sexual freedom, Yackle contends that the rights we enjoy are neither more nor less than what the justices choose to make of them. Regulatory Rights is a bracing read that will be heatedly debated by all those interested in constitutional law and the judiciary.
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Rehabilitating Lochner
Defending Individual Rights against Progressive Reform
David E. Bernstein
University of Chicago Press, 2011

In this timely reevaluation of an infamous Supreme Court decision, David E. Bernstein provides a compelling survey of the history and background of Lochner v. New York. This 1905 decision invalidated state laws limiting work hours and became the leading case contending that novel economic regulations were unconstitutional. Sure to be controversial, Rehabilitating Lochner argues that the decision was well grounded in precedent—and that modern constitutional jurisprudence owes at least as much to the limited-government ideas of Lochner proponents as to the more expansive vision of its Progressive opponents.
 

Tracing the influence of this decision through subsequent battles over segregation laws, sex discrimination, civil liberties, and more, Rehabilitating Lochner argues not only that the court acted reasonably in Lochner, but that Lochner and like-minded cases have been widely misunderstood and unfairly maligned ever since.

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Religious Freedom and the Constitution
Christopher L. Eisgruber and Lawrence G. Sager
Harvard University Press, 2010

Religion has become a charged token in a politics of division. In disputes about faith-based social services, public money for religious schools, the Pledge of Allegiance, Ten Commandments monuments, the theory of evolution, and many other topics, angry contestation threatens to displace America's historic commitment to religious freedom. Part of the problem, the authors argue, is that constitutional analysis of religious freedom has been hobbled by the idea of "a wall of separation" between church and state. That metaphor has been understood to demand that religion be treated far better than other concerns in some contexts, and far worse in others. Sometimes it seems to insist on both contrary forms of treatment simultaneously. Missing has been concern for the fair and equal treatment of religion. In response, the authors offer an understanding of religious freedom called Equal Liberty.

Equal Liberty is guided by two principles. First, no one within the reach of the Constitution ought to be devalued on account of the spiritual foundation of their commitments. Second, all persons should enjoy broad rights of free speech, personal autonomy, associative freedom, and private property. Together, these principles are generous and fair to a wide range of religious beliefs and practices.

With Equal Liberty as their guide, the authors offer practical, moderate, and appealing terms for the settlement of many hot-button issues that have plunged religious freedom into controversy. Their book calls Americans back to the project of finding fair terms of cooperation for a religiously diverse people, and it offers a valuable set of tools for working toward that end.

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Religious Freedom in an Egalitarian Age
Nelson Tebbe
Harvard University Press, 2017

Tensions between religious freedom and equality law are newly strained in America. As lawmakers work to protect LGBT citizens and women seeking reproductive freedom, religious traditionalists assert their right to dissent from what they see as a new liberal orthodoxy. Some religious advocates are going further and expressing skepticism that egalitarianism can be defended with reasons at all. Legal experts have not offered a satisfying response—until now.

Nelson Tebbe argues that these disputes, which are admittedly complex, nevertheless can be resolved without irrationality or arbitrariness. In Religious Freedom in an Egalitarian Age, he advances a method called social coherence, based on the way that people reason through moral problems in everyday life. Social coherence provides a way to reach justified conclusions in constitutional law, even in situations that pit multiple values against each other. Tebbe contends that reasons must play a role in the resolution of these conflicts, alongside interests and ideologies. Otherwise, the health of democratic constitutionalism could suffer.

Applying this method to a range of real-world cases, Tebbe offers a set of powerful principles for mediating between religion and equality law, and he shows how they can lead to workable solutions in areas ranging from employment discrimination and public accommodations to government officials and public funding. While social coherence does not guarantee outcomes that will please the liberal Left, it does point the way toward reasoned, nonarbitrary solutions to the current impasse.

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The Rescue of Joshua Glover
A Fugitive Slave, the Constitution, and the Coming of the Civil War
H. Robert Baker
Ohio University Press, 2006

On March 11, 1854, the people of Wisconsin prevented agents of the federal government from carrying away the fugitive slave, Joshua Glover. Assembling in mass outside the Milwaukee courthouse, they demanded that the federal officers respect his civil liberties as they would those of any other citizen of the state. When the officers refused, the crowd took matters into its own hands and rescued Joshua Glover. The federal government brought his rescuers to trial, but the Wisconsin Supreme Court intervened and took the bold step of ruling the Fugitive Slave Act unconstitutional.

The Rescue of Joshua Glover delves into the courtroom trials, political battles, and cultural equivocation precipitated by Joshua Glover’s brief, but enormously important, appearance in Wisconsin on the eve of the Civil War.

H. Robert Baker articulates the many ways in which this case evoked powerful emotions in antebellum America, just as the stage adaptation of Uncle Tom’s Cabin was touring the country and stirring antislavery sentiments. Terribly conflicted about race, Americans struggled mightily with a revolutionary heritage that sanctified liberty but also brooked compromise with slavery. Nevertheless, as The Rescue of Joshua Glover demonstrates, they maintained the principle that the people themselves were the last defenders of constitutional liberty, even as Glover’s rescue raised troubling questions about citizenship and the place of free blacks in America.

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Revolution by Judiciary
The Structure of American Constitutional Law
Jed Rubenfeld
Harvard University Press, 2005

Although constitutional law is supposed to be fixed and enduring, its central narrative in the twentieth century has been one of radical reinterpretation--Brown v. Board of Education, Roe v. Wade, Bush v. Gore. What, if anything, justifies such radical reinterpretation? How does it work doctrinally? What, if anything, structures it or limits it?

Jed Rubenfeld finds a pattern in American constitutional interpretation that answers these questions convincingly. He posits two different understandings of how constitutional rights would apply or not apply to particular legislation. One is that a right would be violated if certain laws were passed. The other is that a right would not be violated. He calls the former "Application Understandings" and the latter "No-Application Understandings." He finds that constitutional law has almost always adhered to all of the original Application Understandings, but where it has departed from history, as it did in the Brown decision, it has departed from No-Application Understandings. Specifically, the Fourteenth Amendment did not prohibit racial segregation, so Rubenfeld argues that the Supreme Court had no problem reinterpreting it to prohibit it. It was a No-Application Understanding.

This is a powerful argument that challenges current theories of constitutional interpretation from Bork to Dworkin. It rejects simplistic originalism, but restores historicity to constitutional theorizing.

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Revolutionary Constitutions
Charismatic Leadership and the Rule of Law
Bruce Ackerman
Harvard University Press, 2019

A robust defense of democratic populism by one of America’s most renowned and controversial constitutional scholars—the award-winning author of We the People.

Populism is a threat to the democratic world, fuel for demagogues and reactionary crowds—or so its critics would have us believe. But in his award-winning trilogy We the People, Bruce Ackerman showed that Americans have repeatedly rejected this view. Now he draws on a quarter century of scholarship in this essential and surprising inquiry into the origins, successes, and threats to revolutionary constitutionalism around the world. He takes us to India, South Africa, Italy, France, Poland, Burma, Israel, and Iran and provides a blow-by-blow account of the tribulations that confronted popular movements in their insurgent campaigns for constitutional democracy. Despite their many differences, populist leaders such as Nehru, Mandela, and de Gaulle encountered similar dilemmas at critical turning points, and each managed something overlooked but essential. Rather than deploy their charismatic leadership to retain power, they instead used it to confer legitimacy to the citizens and institutions of constitutional democracy.

Ackerman returns to the United States in his last chapter to provide new insights into the Founders’ acts of constitutional statesmanship as they met very similar challenges to those confronting populist leaders today. In the age of Trump, the democratic system of checks and balances will not survive unless ordinary citizens rally to its defense. Revolutionary Constitutions shows how activists can learn from their predecessors’ successes and profit from their mistakes, and sets up Ackerman’s next volume, which will address how elites and insiders co-opt and destroy the momentum of revolutionary movements.

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Rights of Inclusion
Law and Identity in the Life Stories of Americans with Disabilities
David M. Engel and Frank W. Munger
University of Chicago Press, 2003
Rights of Inclusion provides an innovative, accessible perspective on how civil rights legislation affects the lives of ordinary Americans. Based on eye-opening and deeply moving interviews with intended beneficiaries of the Americans with Disabilities Act (ADA), David M. Engel and Frank W. Munger argue for a radically new understanding of rights-one that focuses on their role in everyday lives rather than in formal legal claims.

Although all sixty interviewees had experienced discrimination, none had filed a formal protest or lawsuit. Nevertheless, civil rights played a crucial role in their lives. Rights improved their self-image, enhanced their career aspirations, and altered the perceptions and assumptions of their employers and coworkers-in effect producing more inclusive institutional arrangements. Focusing on these long-term life histories, Engel and Munger incisively show how rights and identity affect one another over time and how that interaction ultimately determines the success of laws such as the ADA.
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The Rise and Decline of American Religious Freedom
Steven D. Smith
Harvard University Press, 2014

Familiar accounts of religious freedom in the United States often tell a story of visionary founders who broke from the centuries-old patterns of Christendom to establish a political arrangement committed to secular and religiously neutral government. These novel commitments were supposedly embodied in the religion clauses of the First Amendment. But this story is largely a fairytale, Steven D. Smith says in this incisive examination of a much-mythologized subject. He makes the case that the American achievement was not a rejection of Christian commitments but a retrieval of classic Christian ideals of freedom of the church and freedom of conscience.

Smith maintains that the distinctive American contribution to religious freedom was not in the First Amendment, which was intended merely to preserve the political status quo in matters of religion. What was important was the commitment to open contestation between secularist and providentialist understandings of the nation which evolved over the nineteenth century. In the twentieth century, far from vindicating constitutional principles, as conventional wisdom suggests, the Supreme Court imposed secular neutrality, which effectively repudiated this commitment to open contestation. Rather than upholding what was distinctively American and constitutional, these decisions subverted it. The negative consequences are visible today in the incoherence of religion clause jurisprudence and the intense culture wars in American politics.

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The Rise and Fall of Morris Ernst, Free Speech Renegade
Samantha Barbas
University of Chicago Press, 2021
A long-overdue biography of the legendary civil liberties lawyer—a vital and contrary figure who both defended Ulysses and fawned over J. Edgar Hoover.

In the 1930s and ’40s, Morris Ernst was one of America’s best-known liberal lawyers. The ACLU’s general counsel for decades, Ernst was renowned for his audacious fights against artistic censorship. He successfully defended Ulysses against obscenity charges, litigated groundbreaking reproductive rights cases, and supported the widespread expansion of protections for sexual expression, union organizing, and public speech. Yet Ernst was also a man of stark contradictions, waging a personal battle against Communism, defending an autocrat, and aligning himself with J. Edgar Hoover’s inflammatory crusades.

Arriving at a moment when issues of privacy, artistic freedom, and personal expression are freshly relevant, The Rise and Fall of Morris Ernst, Free Speech Renegade brings this singularly complex figure into a timely new light. As Samantha Barbas’s eloquent and compelling biography makes ironically clear, Ernst both transformed free speech in America and inflicted damage to the cause of civil liberties. Drawing on Ernst’s voluminous cache of publications and papers, Barbas follows the life of this singular idealist from his pugnacious early career to his legal triumphs of the 1930s and ’40s and his later idiosyncratic zealotry. As she shows, today’s challenges to free speech and the exercise of political power make Morris Ernst’s battles as pertinent as ever.
 
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