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Has American democracy outstripped its constitutional accommodations?

Faith in the resilience and adaptability of the US Constitution rests on a long history of finding new ways to make the system work. In The Adaptability Paradox, political scientist Stephen Skowronek examines the rearrangements that regenerated the American government in the past and brings that experience to bear on our current predicament. He shows how a constitution framed in writing some 230 years ago can run into serious difficulties directly related to its long and impressive history of adaptation.

Skowronek connects questions about the Constitution’s adaptability to the challenges of democratization. For most of American history, serial rearrangements of constitutional relationships widened the government’s purview as a national democracy without giving either nationalism or democracy free rein. Skowronek argues that the politics of adaptation shifted fundamentally with the “Rights Revolution” of the 1960s and `70s when American national democracy approached the inclusion of all its citizens on equal footing. Since then, power and authority have been reconfigured in ways that have steadily magnified conflicts over the essentials of good order. Conservatives aim to dismantle a Constitution that progressives are intent on building upon, and the consensus necessary for a constitutional democracy to function effectively has all but evaporated. No longer a socially bound framework for national action, the Constitution has become an abstract matrix of possibilities, a disembodied opportunity structure open to starkly different, mutually unacceptable futures.

Rather than being liberated by this unbound Constitution, the American people now appear entrapped by it. Is it possible that the development of American democracy has exhausted the adaptive capacities of the Constitution? A timely reminder that constitutional democracies do not survive on faith alone, The Adaptability Paradox is a sober appraisal of the unfamiliar ground on which we now tread.

Celebrating its fiftieth anniversary, Robert McCloskey’s classic work on the Supreme Court’s role in constructing the U.S. Constitution has introduced generations of students to the workings of our nation’s highest court. For this new fifth edition, Sanford Levinson extends McCloskey’s magisterial treatment to address the Court’s most recent decisions.

As in prior editions, McCloskey’s original text remains unchanged. In his historical interpretation, he argues that the strength of the Court has always been its sensitivity to the changing political scene, as well as its reluctance to stray too far from the main currents of public sentiments. In two revised chapters, Levinson shows how McCloskey’s approach continues to illuminate developments since 2005, including the Court’s decisions in cases arising out of the War on Terror, which range from issues of civil liberty to tests of executive power. He also discusses the Court’s skepticism regarding campaign finance regulation; its affirmation of the right to bear arms; and the increasingly important nomination and confirmation process of Supreme Court justices, including that of the first Hispanic justice, Sonia Sotomayor.

The best and most concise account of the Supreme Court and its place in American politics, McCloskey's wonderfully readable book is an essential guide to the past, present, and future prospects of this institution.

Reviewing the dismantling of American labor law in more than 100 Supreme Court cases

The National Labor Relations Act (NLRA), signed into law by Franklin Delano Roosevelt in 1935, guarantees the right of private sector employees to organize into trade unions, engage in collective bargaining, and take collective action such as strikes. Since its passage, the NLRA has functioned as the foundational statute of United States labor law. Opposed by conservatives and members of the Republican Party from the beginning, its provisions were largely upheld by the Supreme Court until the 1960s. In the latter part of the twentieth century and into the twenty-first, however, the Court began to erode the protections of the NLRA. While some cases have received widespread attention from commentators and scholars, such as Starbucks Corp. v. McKinney (2024), there have been numerous detrimental rulings that are little discussed. Taken as a whole, the Supreme Court’s efforts to undermine the NLRA appear sustained and systematic.

In The Assault on American Labor Law, distinguished labor law professor Roger C. Hartley collects and carefully reviews every Supreme Court decision concerning the NLRA over the past sixty years. By examining approximately 100 cases, Hartley demonstrates that the Court has often operated more like a legislature than a judicial body, effectively amending the NLRA’s collectivist policy underpinnings in favor of the interests of individuals and businesses. These judicial decisions create staggering obstacles for American workers to collectively organize and force them to face globalization, deindustrialization, and technological change individually, without the negotiating leverage provided by union representation. While scholars have suggested individual reforms to re-establish the efficacy of the NLRA, Hartley’s thorough study illuminates how the current crisis in US labor law evolved—a comprehensive view that is necessary to help restore the rights of workers to unionize.

A study that challenges our notions about citizenship and judgment by considering the place of children in historical and contemporary legal discourse.

Many of the most controversial political issues of our time focus on the actions and well-being of children such as Greta Thunberg’s climate movement; youth activists standing up for racial justice, safe schools, and an equitable economy; and the furor over separating migrant children from their families. When do we treat children as competent citizens, when do we treat them as dependents in need of protection, and why?

The Child before the Court: Judgment, Citizenship, and the Constitution provides answers to these foundational questions. It analyzes landmark US Supreme Court cases involving children’s free speech and due process rights and argues that our ideas about civic and legal judgment are deeply contested concepts instead of simple character traits. These cases serve as analytic touchstones for these problems, and the Court’s opinions seemingly articulate clear rules through a pragmatic balancing of interests.

Timothy Barouch shows how these cases continually reshape constitutional thought, breaking from a vocabulary of wardship and recasting the child as a liberal individual. He analyzes these legal opinions as judicial novelizations and focuses on their rhetorical markers: the range of tropes, idioms, figures, and arguments that emerge across nearly two centuries of jurisprudence in this important but oft-neglected area. The careful and subtle readings of these cases demonstrate how judicial representations of the child provide key resources for thinking about the child as citizen and, more broadly, citizenship itself. It serves as a bold call to think through the relationship between the liberal individual and the problem of civic judgment as it manifests in public culture in a wide array of contexts at a time when liberal democracy is under siege.
 

Police are required to obey the law. While that seems obvious, courts have lost track of that requirement due to misinterpreting the two constitutional provisions governing police conduct: the Fourth and Fourteenth Amendments. The Fourth Amendment forbids "unreasonable searches and seizures" and is the source of most constitutional constraints on policing. Although that provision technically applies only to the federal government, the Fourteenth Amendment, ratified in the wake of the Civil War, has been deemed to apply the Fourth Amendment to the States.

This book contends that the courts’ misinterpretation of these provisions has led them to hold federal and state law enforcement mistakenly to the same constitutional standards. The Fourth Amendment was originally understood as a federalism, or “states’ rights,” provision that, in effect, required federal agents to adhere to state law when searching or seizing. Thus, applying the same constraint to the States is impossible. Instead, the Fourteenth Amendment was originally understood in part as requiring that state officials (1) adhere to state law, (2) not discriminate, and (3) not be granted excessive discretion by legislators. These principles should guide judicial review of modern policing. Instead, constitutional constraints on policing are too strict and too forgiving at the same time. In this book, Michael J.Z. Mannheimer calls for a reimagination of what modern policing could look like based on the original understandings of the Fourth and Fourteenth Amendments.

On the final day of its 2008 term, a sharply divided U.S. Supreme Court issued a 5-to-4 decision striking down the District of Columbia's stringent gun control laws as a violation of the Second Amendment. Reversing almost seventy years of settled precedent, the high court reinterpreted the meaning of the “right of the people to keep and bear arms” to affirm an individual right to own a gun in the home for purposes of self-defense. The landmark ruling not only opened a new chapter in the contentious history of gun rights and gun control but also revealed both the strengths and problems of originalist constitutional theory and jurisprudence.

This volume brings together some of the best scholarship on the Heller case, with essays by legal scholars and historians representing a range of ideological viewpoints and applying different interpretive frameworks. Following the editors' introduction, which describes the issues involved and the arguments on each side, the essays are organized into four sections. The first includes two of the most important historical briefs filed in the case, while the second offers different views of the role of originalist theory. Section three presents opposing interpretations of the ruling and its relationship to modern constitutional doctrine. The final section explores historical research post-Heller, including new findings on patterns of gun ownership in colonial and Revolutionary America. 

In addition to the editors, contributors include Nelson Lund, Joyce Lee Malcolm, Jack Rakove, Reva B. Siegel, Cass R. Sunstein, Kevin M. Sweeney, and J. Harvie Wilkinson III.