The Supreme Court and the Idea of Constitutionalism

In this volume distinguished constitutional scholars aim to move debate over the Supreme Court beyond the soundbites that divide us to fundamental questions about the nature of constitutionalism.

From Brown v. Board of Education to Roe v. Wade to Bush v. Gore, the Supreme Court has, over the past fifty years, assumed an increasingly controversial place in American national political life. As the recurring struggles over nominations to the Court illustrate, few questions today divide our political community more profoundly than those concerning the Court's proper role as protector of liberties and guardian of the Constitution. If the nation is today in the midst of a "culture war," the contest over the Supreme Court is certainly one of its principal battlefields.

In this volume, distinguished constitutional scholars aim to move debate beyond the sound bites that divide the opposing parties to more fundamental discussions about the nature of constitutionalism. Toward this end, the volume includes chapters on the philosophical and historical origins of the idea of constitutionalism; on theories of constitutionalism in American history in particular; on the practices of constitutionalism around the globe; and on the parallel emergence of—and the persistent tensions between—constitutionalism and democracy throughout the modern world.

In democracies, the primary point of having a constitution is to place some matters beyond politics and partisan contest. And yet it seems equally clear that constitutionalism of this kind results in a struggle over the meaning or proper interpretation of the constitution, a struggle that is itself deeply political. Although the volume represents a variety of viewpoints and approaches, this struggle, which is the central paradox of constitutionalism, is the ultimate theme of all the essays.

Introduction: The Idea of Constitutionalism
—Steven Kautz, Arthur Melzer, Jerry Weinberger, and M. Richard Zinman

PART I. PHILOSOPHICAL PERSPECTIVES
1. Ideas of Constitutionalism Ancient and Modern
—Nathan Tarcov
2. On Liberal Constitutionalism
—Steven Kautz

PART II. HISTORICAL PERSPECTIVES: AMERICAN CONSTITUTIONAL HISTORY
3. Judicial Review and the Incomplete Constitution: A Madisonian Perspective on the Supreme Court and the
Idea of Constitutionalism
—Michael P. Zuckert
4. Constitutionalism as Judicial Review: Historical Lessons from the U.S. Case
—Leslie Friedman Goldstein
5. Who Has Authority over the Constitution of the United States?
—James Stoner

PART III. COMPARATIVE PERSPECTIVES
6. The Supreme Court and Contemporary Constitutionalism: The Implications of the Development of Alternative Forms of Judicial Review
—Mark Tushnet
7. The Sounds of Silence: Militant and Acquiescent Constitutionalism
—Gary Jeffrey Jacobsohn

PART IV. CONSTITUTIONALISM AND DEMOCRACY
8. Constitutionalism and Democracy: Understanding the Relation
—Larry Alexander
9. Active Liberty and the Problem of Judicial Oligarchy
—Robert P. Young, Jr.
10. Judicial Power and Democracy: A Machiavellian View
—Rogers M. Smith

PART V. CONSTITUTIONALISM AND POLITICS
11. Constitutional Constraints in Politics
—Keith E. Whittington
12. "The Court Will Clean It Up": Executive Power, Constitutional Contestation, and War Powers
—Benjamin A. Kleinerman

Notes
List of Contributors
Index
Acknowledgments