David Brian Robertson
This chapter examines the evolution of the U.S. Constitution from 1620 to the early republic. It first outlines the ideas and experiences that shaped the Constitution, including self-government, republicanism, and rights from seventeenth-century Britain. It then considers the economic and political differences among British colonies and their eventual independence, each reinventing itself as a self-governing and sovereign state. It also discusses the Articles of Confederation (1781-1789) that made a Confederation Congress the cornerstone of national government, the 1780s as a “critical period” in American history, and the politics of the Constitutional Convention held in Philadelphia in May 1787. Finally, the chapter explores the creation of the three branches of government (Congress, the national executive, and judiciary), constitutional amendments and the ratification process, the Bill of Rights, and the Supreme Court.
Michael Les Benedict
This chapter examines constitutional developments during the period from the inauguration of President Andrew Jackson through Reconstruction. It begins with an overview of the tension between constitutional politics and constitutional law before turning to a discussion of constitutional issues in the Jacksonian Era, with particular emphasis on the constitutional politics of state rights, Jackson’s increased power, equal rights and democracy, how the Supreme Court addressed constitutional issues of the period, and constitutional issues of slavery. It then explores constitutional issues during the Civil War by tackling ones related to secession, civil liberties and emancipation under the administration of Abraham Lincoln, and the accretion of federal power. The chapter concludes with an analysis of the constitutional issues during Reconstruction, focusing on efforts to restore the Southern states to normal relations in the Union, instability in the South and federal protection of rights, and the role of the Supreme Court.
At the turn of the nineteenth century, the constitutional state took its origin from a revolution against absolutist rule and feudal inequality. ‘Constitution’ as a revolutionary new concept of law meant as an ideal-type: written, supreme, secular law, decided by the people and regulating all public power. Constitutional monarchy was the dominant type of constitutional state in Europe throughout the nineteenth century. It was marked by a fundamental dualism between monarchical and parliamentary power, which tended towards parliamentarization and came to an end with complete constitutionalization and democratization of European states as an outcome of the First World War. While the post-war years represented the apex of European constitutionalism, the deep European crisis of the 1930s with the rise of dictatorship destroyed the core function of constitutionalism, to legally bind state power, which came to be restored only gradually after 1989 for the whole of Europe.
Mark E. Brandon
This chapter examines constitutionalism in the United States, with particular emphasis on its origins and the problems of constitutional failure. It begins with an overview of the origins of constitutionalism, from the ancient period to the Middle Ages and through the modern times. It then describes the characteristics of constitutionalism in the United States, focusing on the debates over the locus of the Constitution’s authority, the legitimacy of judicial review, and the phenomenon of constitutional change. It also discusses critical theories that have set themselves against aspects of U.S. constitutional norms or practices, if not against constitutionalism itself. Two types of critical scholarship are considered: the first radically questions whether the very direction and constraint that constitutionalism demands or presupposes are possible, and the second includes theories that view the Constitution as an instrument for establishing or preserving certain hierarchies, whether of class, race, or sex (or all three).
Bartholomew H. Sparrow
This chapter examines the concept of “empire” in the U.S. Constitution, with particular emphasis on four forms of empire—all sanctioned by the Constitution—that reflected the complexity of the history and present-day status of U.S. sovereignty within the territories and states, over the American Indians, and over those outside the formal boundaries of the United States. It begins with an overview of the federal government’s unquestioned authority over the territories annexed by Congress and the president, beyond the several states, followed by a discussion on the federal government’s control of the “public domain” in the area annexed to the Union. It then considers the empire wielded over the American Indians and their lands, followed by an analysis of extraterritoriality as a form of empire exerted over persons and areas outside the borders of the United States, including U.S. territories, after World War II.
Ellen D. Katz
This chapter examines efforts to enforce the Fifteenth Amendment in the period from United States v. Reese through Shelby County v. Holder. Reese and Shelby County expose the most rigorous stance the Court has employed to review congressional efforts to enforce the Fifteenth Amendment, while the years in-between show Congress and the Court working more in tandem, at times displaying remarkable indifference to blatant violations of the Fifteenth Amendment, and elsewhere working cooperatively to help vindicate the Amendment’s promise. Defying simple explanation, this vacillation between cooperation and resistance captures the complex and deeply consequential way concerns about federal power, state autonomy, institutional overreaching, and race-conscious decision-making of various sorts have coalesced at particular moments. The result is a narrative that shows both the progress that is possible when the Fifteenth Amendment is vigorously enforced and the damage that is done when it is not.
This chapter focuses on the evolution of the fiscal constitution in the United States. It begins with an overview of the role played by fiscal realities in the American Revolution, collapse of governance under the Articles of Confederation, and design of the U.S. Constitution. It then turns to Albert Gallatin, a Swiss immigrant who established the outlines of America’s fiscal constitution, and the U.S. presidents' expansion of budgetary influence through the presidential veto. It also considers the rise of new monetary and tax policies during the Civil War; non-contributory social insurance and its implications for congressional control of spending; and fiscal issues that shaped the new Constitution and contributed to the demise of the traditional restrictions on the use of debt, unprecedented budget deficits, and revived calls for a constitutional amendment requiring balanced budgets. Finally, it discusses central banking that sparked a seminal debate over the constitutional power of Congress.
Stephen M. Feldman
This chapter examines the constitutional protection of free speech and free press. It emphasizes the legal doctrine underpinning free expression in America as well as two competing traditions: a tradition of dissent and a tradition of suppression. It first discusses the framing of the Constitution and the Bill of Rights, along with early doctrinal developments related to free speech and free press. It next looks at initial Supreme Court cases involving freedom of expression and the impact of those cases on democracy and free expression. Finally, it assesses recent developments in free-expression jurisprudence, with emphasis on the observation that the “haves”—that is, the wealthy and powerful—often win.
L.A. Powe Jr.
This chapter examines three seminal constitutional events in the United States in the period from the New Deal through the Reagan Revolution: President Franklin D. Roosevelt’s Supreme Court-packing plan, Brown v. Board of Education, and the Senate’s rejection of President Ronald Reagan’s nomination of Robert Bork to the Supreme Court. During these years, issues ranging from flag salute and Japanese-American internment to the military trial of Nazi saboteurs, the Cold War, and civil rights are discussed. The chapter also explores other issues such as voting and housing, higher education, legislative apportionment, the Bill of Rights and criminal procedure, religion, freedom of expression, capital punishment, discrimination, affirmative action, and privacy.
Leslie F. Goldstein
This chapter explores three gender-related constitutional revolutions: the doubling of the size of the electorate by adding women, constitutionalization of the right to obtain an abortion, and constitutionalization of a rule that gender discrimination in statutes is generally frowned upon. The first revolution was made possible by official constitutional amendment, and the last two through the unofficial “amending” of the U.S. Constitution with the help of Supreme Court decision-making. The chapter first looks at the constitutional neglect of inequalities suffered by women during the period 1787–1920, followed by a discussion on equal protection accorded to women in 1868–1976, which culminated in the enactment of the women’s suffrage Nineteenth Amendment on August 18, 1920. It then considers the sexual revolution in constitutional law between 1971 and 1976, with particular emphasis on the Equal Rights Amendment and its impact on gender equity and reproductive freedom (and other new fundamental rights).
Ken I. Kersch
This chapter begins with an overview of the fundamental questions raised from the end of Reconstruction to World War I about the relationship of the Constitution to a rapidly and radically transforming country. It introduces the era’s new theories about and the institutions and practice of government, particularly as advanced by Progressives committed to forging a “new democracy,” as well as conservative resistance to that thinking. It charts the transformation of constitutional structures and relationships in the period, including the powers of the judiciary, the presidency, administrative agencies, and Congress, and describes the period’s innovating theories of judicial review, the separation of powers, and federalism. Finally, the chapter describes problems of equality (inclusion/exclusion) and liberty (individual “personal” freedom), and maps the altered conditions and conceptual shifts (as pioneered by the era’s intellectual, political, and legal entrepreneurs) that gave rise to modern liberal understandings of civil rights and civil liberties.
This chapter examines habeas corpus as an instrument of judicial authority and its role in developing an understanding of the U.S. Constitution with regard to basic aspects of liberty. More specifically, it considers the two axes along which the writ runs: a vertical axis, on which federal and state authorities interact; and a horizontal axis, where the three branches of the federal government intertwine. The chapter begins with a historical overview of habeas corpus in England and the British Empire, touching on topics such as the prerogative writ, the common law writ, and the impact of legislation on the writ. It then discusses the suspension clause of the Constitution, the writ’s potential to moderate among conflicting parts of the federal government, habeas corpus in relation to slavery, changes in habeas corpus after the Civil War, federal courts’ review of state trials, and legislative and judicial pursuit of finality.
This chapter highlights the importance of the historical method in public law by showing the way that public law was established as a distinct field of knowledge in European jurisprudence. Since developments in French legal thought in the sixteenth century provided the catalyst for generating this modern concept of public law, this is the focus of the chapter. This approach exposes the constituent elements of public law and shows how the historical method becomes a central element of the modern practice of public law. It suggests that the modern idea of public law was created as a local, contextual, source-based practice in opposition to the universal metaphysics of medieval scholasticism. It was established by setting in place a conception of law as a body of practical knowledge that is historical in orientation and geared to the concerns of civil government.
This chapter discusses the violence of constitutional law, as verified by American constitutional history. It seeks to illuminate the centrality of violence to American constitutional history, and in so doing, illuminate the shape and trajectory, the limits and possibilities, of American constitutional law in the present. Although nothing could be easier than to find epic examples of injustice in American constitutional history, the object is not to call out injustice as such but to illustrate the violence—justified or not—at the root of and in the continuing history of American constitutional law. Using the history of ongoing controversies in the American constitutional law of crime, the chapter makes the case for the ongoing violence of constitutional law.
Antonia Fraser Fujinaga
This article examines Islamic law in post-revolutionary Iran, with particular emphasis on areas where Islamic and Iranian law intersect. Before discussing the various manifestations of Islam in Iran, it traces the history of Iran’s adoption of Islamized laws. It then turns to the nature and history of the post-revolutionary Iranian constitution and constitutional law, along with the efforts of Iranian Islamic reformists and thinkers to conceptualize Islam so as to accommodate popular representation and adaptability to changing social and cultural preferences. It also considers the relationship between conformity to Shi‘a law (and/or its governmentally endorsed interpretations) on the one hand, and the exigencies of a modern state—including some responsiveness to popular and parliamentary demands for legal reform—on the other. Finally, the article looks at various areas where Islamic law intersects with Iranian law.
Matthew L.M. Fletcher
This chapter explores constitutional principles that underlie self-determination policies for Native Americans. It first outlines the four eras of federal Indian law and policy: the colonial era (1700–1770s), the treaty era (1780s–1871), the post-treaty era (1887-1970s), and the self-determination era (1970-present). It then examines the foundational principles of federal Indian law, with particular emphasis on federal government supremacy in Indian affairs and Indian nations’ inherent government authority. It also explains the terms “Indian” and “Indian tribe” or “Indian nation” before turning to a discussion of federal-tribal relations, state-tribal relations, tribal governance, and American Indian law in light of developing international law principles. Finally, the chapter considers challenges faced by Indian nations and Indian people, especially with respect to the conflict between the federal government’s commitment to self-determination and Indian tribes’ continued dependence on federal appropriations and administration.
Thomas M. Keck
This chapter examines constitutional development in the United States since the time of President Ronald Reagan. It considers the Reagan administration’s constitutional agenda, with particular emphasis on the Republican Party’s sustained effort to use the courts’ institutional authority to read key conservative priorities into the Constitution, and how Reagan used the legal apparatus to push constitutional law rightward. It also discusses the legal results of the Republican strategy for constitutional change, paying special attention to the role played by the federal judiciary in the partisan coalition. Finally, the chapter explores two conflicting desires of the conservatives: to rein in the landmark doctrines of liberal judicial activism dating to the Warren and early Burger Courts and to use their newfound control of the federal courts to advance conservative policy goals.
Norman W. Spaulding
Every revolutionary liberal democratic founding has its secret drawers where one can find the illiberal ideas and mnemonic traces of illiberal acts in and through which the state came into being and sustains itself. With regard to the American founding, conventional approaches either ignore the American Civil War altogether, or attempt to render it continuous with the constitution of 1789 by arguing that, apart from the abolition of slavery, the Union survived the war intact. Illiberal aspects of the revolution itself are also ignored. For many Americans, it would seem, it is better to keep the drawer closed. This chapter considers whether it is possible to develop an account of the founding in which the drawer is left open. Although the chapter concentrates on the American founding, parallel interpretive challenges attending the English and French revolutions are explored.
This chapter examines what the U.S. Constitution says about the right to bear arms. It begins with an overview of the changing meaning of the right to bear arms in American history, along with the English origins of the right to bear arms. It then considers the origins of the Second Amendment before turning to a discussion of the right to bear arms during the antebellum period, with emphasis on the emergence of the first gun laws aimed expressly at the problem of gun violence and the first cases focused on evaluating such laws in constitutional terms. It also explores the emergence of a federal Second Amendment jurisprudence during the Civil War and Reconstruction and the debate over gun rights versus gun control, and concludes by citing how the dynamics of that debate was influenced by the massacre at Sandy Hook Elementary School in Newtown, Connecticut, in December 2012.
This article presents a history of ideas of constitutional designs and conceptions of constitutionalism. It discusses the problem with typologies, identifying the object, the constitution as law, constitutions as expressions of political ideas, and national and international constitutions.