Monday, November 03, 2008

Directed Reading: Constitutionalism

The next installment in our Directed Reading series is a bibliography for constitutionalism. As with most of the bibliographies, this one is subject to conspicuous constraints: books only, in English. Still, there's an enormous number of titles and no doubt there remains several I've missed, but this collection should keep even the most assiduous researcher occupied for some time.

I have not been able to keep up with the latest debates in constitutional theory, but some of the more interesting discussions and arguments have been chronicled by Larry Solum at his invaluable Legal Theory Blog. Several other blogs I've found helpful in keeping track of the topics and questions contemporary legal scholars have christened as the most pressing in constitutionalism: Mary Dudziak's Legal History Blog, Michael Dorf's Dorf on Law, and Jack Balkin's Balkinization. OK, on occasion I even find discussion at The Volokh Conspiracy useful (especially Orin Kerr's musings). A new blog in the Law Profesors Blog Network should prove essential as well: Constitutional Law Prof Blog. By my dim lights, one of the more recent forays into constitutional theory worthy of everyone's attention comes courtesy of Jack Balkin: "Framework Originalism and the Living Constitution." I'm sure Larry Solum will soon provide us with his characteristically astute observations on Jack's piece (cf. Larry's Legal Theory Lexicon entry on 'Originalism' for starters, and then see his article on 'Semantic Originalism.' ).

I sent a draft of this bibliography to Michael Dorf and he was kind enough to offer the following comments (which I provide here with his permission [and with the correction of a few typos]):

"The constitutionalism bibliography is quite thorough, although there is a limitation that arises out of using only books: Much of the most influential work in US constitutional law is published only in journal form [emphasis added]. One example: Your list omits Herbert Weschler's very important"Neutral Principles" articles and Charles Black's response. Another two examples: Gerald Gunther's two most important works in con law are articles: 1) 'The Subtle Vices of the Passive Virtues' (which responds to Bickel); and 2) His Harvard L Rev Foreword setting out the notion of strict scrutiny as strict in theory, fatal in fact. You get the idea."

And Steven Schwinn of the Constitutional Law Prof Blog noticed that I failed to include Steven G. Calabresi and Christopher S. Yoo's The Unitary Executive: Presidential Power from Washington to Bush (New Haven, CT: Yale University Press, 2008).
Update: Professor Douglas E. Edlin (Political Science, Dickinson College) has generously suggested some additional titles. He was reluctant to include his forthcoming book but I'll simply mention his reticence and cite it here anyway (this is in keeping with the prevailing norm, which I believe is proper):
  • Breslin, Beau. The Communitarian Constitution. Baltimore, MD: Johns Hopkins University Press, 2004.
  • Breslin, Beau. From Words to Worlds: Exploring Constitutional Functionality. Baltimore, MD: Johns Hopkins University Press, 2008.
  • Edlin, Douglas E. Judges and Unjust Laws: Common Law Constitutionalism and the Foundations of Judicial Review. Ann Arbor, MI: University of Michigan Press, 2008.
  • Gordon, Scott. Controlling the State: Constitutionalism from Ancient Athens to Today. Cambridge, MA: Harvard University Press, 1999.
  • Sampford, Charles. Retrospectivity and the Rule of Law. New York: Oxford University Press, 2006.
  • Tamanaha, Brian Z. On the Rule of Law: History, Politics, Theory. Cambridge, UK: Cambridge University Press, 2004.
  • Tamanaha, Brian Z. Law as a Means to an End: Threat to the Rule of Law. Cambridge, UK: Cambridge University Press, 2006.
  • Vile, M.J.C. Constitutionalism and the Separation of Powers. Indianapolis, IN: Liberty Fund, 2nd ed., 1998.


Blogger Jon Roland said...

The bibliography consists almost entirely of secondary or tertiary souces -- modern commentaries -- many if not most of which have policy agendas, even if the authors are not always aware of their biases.

I recommend that people start with primary sources, and only turn to modern commentaries after they have mastered those. A good place to start is the Liberty Library of Constitutional Classics at

11/05/2008 12:28 PM  

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