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American Constitutionalism

American Constitutionalism: From Theory to Politics

Stephen M. Griffin
Copyright Date: 1996
Pages: 228
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  • Book Info
    American Constitutionalism
    Book Description:

    Despite the outpouring of works on constitutional theory in the past several decades, no general introduction to the field has been available. Stephen Griffin provides here an original contribution to American constitutional theory in the form of a short, lucid introduction to the subject for scholars and an informed lay audience. He surveys in an unpolemical way the theoretical issues raised by judicial practice in the United States over the past three centuries, particularly since the Warren Court, and locates both theory and practices that have inspired dispute among jurists and scholars in historical context. At the same time he advances an argument about the distinctive nature of our American constitutionalism, regarding it as an instance of the interpenetration of law and politics.

    American Constitutionalismis unique in considering the perspectives of both law and political science in relation to constitutional theory. Constitutional theories produced by legal scholars do not usually discuss state-centered theories of American politics, the importance of institutions, behaviorist research on judicial decision making, or questions of constitutional reform, but this book takes into account the political science literature on these and other topics. The work also devotes substantial attention to judicial review and its relationship to American democracy and theories of constitutional interpretation.

    eISBN: 978-1-4008-2212-6
    Subjects: Law

Table of Contents

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  1. Introduction
    (pp. 3-8)

    Constitutional theory is not a new term, but the enterprise of academic constitutional theory is a new phenomenon. For most of American constitutional history, constitutional theory simply denoted an inquiry into the more general and abstract questions posed by constitutional law. The emergence of constitutional theory as a distinct field of scholarly inquiry occurred only in the aftermath of landmark decisions of the Warren and Burger Courts, such asBrown v. Board of EducationandRoe v. Wade

    Why didBrownandRoeencourage constitutionaltheoryin particular, rather than more vigorous efforts to understand constitutional law? It appears that...

  2. One American Constitutionalism
    (pp. 9-58)

    As with the era of nation building that followed the end of World War II, the end of the Cold War saw a burst of constitution making worldwide. Eastern European countries such as Poland and the Czech Republic, the various states that formerly made up the Soviet Union, and South Africa all acquired new constitutions.¹ Constitutionalism is a strong and vital political practice that is not confined to the North Atlantic countries where its modern form originated in the eighteenth century.

    As the country with the oldest single-document constitution, the United States can take justifiable pride in these developments, as...

  3. Two The Constitution and Political Institutions
    (pp. 59-87)

    War is in many respects the ultimate test of the modern state.¹ The Constitution clearly provides the power to prepare for and fight wars that may be necessary to defend the republic. Article I gives Congress the power “to declare war,” “to raise and support armies,” “to provide and maintain a navy,” and “to make rules for the government and regulation of the land and naval forces.”² Article II provides that “the President shall be Commander in Chief of the army and navy of the United States.”³ Yet these clauses do not provide for many of the situations that may...

  4. Three Judicial Review and American Democracy
    (pp. 88-124)

    On September 1, 1916, President Woodrow Wilson signed a law to prohibit the use of child labor to manufacture products in interstate commerce. The enactment of the law was the culmination of more than a decade of advocacy led by the National Child Labor Committee. The new law underwent exhaustive constitutional analysis before it passed Congress. The interstate commerce power was carefully selected as the most appropriate way to ensure the constitutionality of the legislation. Leaders of the reform effort had been encouraged by a number of rulings by the Supreme Court that suggested Congress had broad power to regulate...

  5. Four Problems of Constitutional Adjudication
    (pp. 125-139)

    The independence of the Supreme Court as a separate branch of the federal government was not symbolized by a building of its own until 1935. Prior to that time, the Court had occupied different quarters in the Capitol. The architecture and artwork of the Supreme Court building were deliberately designed as a tribute to the majesty of the law. The building is a massive structure of white marble that suggests a temple of justice. The plaza in front of the building is dominated by two large sculptures. One is a male figure representing the “Authority of Law,” while the other...

  6. Five Theories of Constitutional Interpretation
    (pp. 140-191)

    Although modern constitutional theory began with the critical reaction to Supreme Court decisions of theLochnerera, the starting point of contemporary constitutional theory isBrown v. Board of Education.¹ While we live in a constitutional world in which a serious challenge toBrownis impossible for all practical purposes, this was not the case when the decision was announced in 1954. At mid-century, all constitutional judges and scholars of consequence accepted the validity of the Progressive critique of theLochnerera Court and saw the post-1937 retreat of the Court on matters of social and economic regulation as entirely...

  7. Six Constitutional Crisis and Reform
    (pp. 192-212)

    Watergate was not mentioned at Richard Nixon’s funeral.¹ At Nixon’s death, President Bill Clinton urged Americans to remember the former president as “a statesman who sought to build a lasting structure of peace.”² Although Nixon was the only president ever to have resigned his office in disgrace, the significance of Watergate was obscured in the commentary that followed his death. Members of the legal community saw Watergate as a permanent stain on Nixon’s presidency, while many members of the foreign policy community tended to downplay its significance.³

    Watergate has been called “the nation’s most sustained political conflict and severest constitutional...