For more than a decade, the U.S. Supreme Court has turned a skeptical eye toward Congress. Distrustful of Congress’s capacity to respect constitutional boundaries, the Court has recently overturned federal legislation at a historically unprecedented rate. This intensified judicial scrutiny highlights the need for increased attention to how Congress approaches constitutional issues. In this important collection, leading scholars in law and political science examine the role of Congress in constitutional interpretation, demonstrating how to better integrate the legislative branch into understandings of constitutional practice.

Several contributors offer wide-ranging accounts of the workings of Congress. They look at lawmakers’ attitudes toward Congress’s role as a constitutional interpreter, the offices within Congress that help lawmakers learn about constitutional issues, Congress’s willingness to use its confirmation power to shape constitutional decisions by both the executive and the courts, and the frequency with which congressional committees take constitutional questions into account. Other contributors address congressional deliberation, paying particular attention to whether Congress’s constitutional interpretations are sound. Still others examine how Congress and the courts should respond to one another’s decisions, suggesting how the courts should evaluate Congress’s work and considering how lawmakers respond to Court decisions that strike down federal legislation. While some essayists are inclined to evaluate Congress’s constitutional interpretation positively, others argue that it could be improved and suggest institutional and procedural reforms toward that end. Whatever their conclusions, all of the essays underscore the pervasive and crucial role that Congress plays in shaping the meaning of the Constitution.

Contributors. David P. Currie, Neal Devins, William N. Eskridge Jr.. John Ferejohn, Louis Fisher, Elizabeth Garrett, Michael J. Gerhardt, Michael J. Klarman, Bruce G. Peabody, J. Mitchell Pickerill, Barbara Sinclair, Mark Tushnet, Adrian Vermeule, Keith E. Whittington, John C. Yoo

Neal Devins is Goodrich Professor of Law, Professor of Government, and Director of the Institute of Bill of Rights Law at the William & Mary School of Law. Among his books are Shaping Constitutional Values: The Supreme Court, Elected Government, and the Abortion Dispute; The Democratic Constitution (coauthored with Louis Fisher); and A Year at the Supreme Court (coedited with Davison Douglas and published by Duke University Press). Keith E. Whittington is Associate Professor of Politics at Princeton University. He is the author of Constitutional Construction: Divided Powers and Constitutional Meaning and Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review.

  

  

  

  

Acknowledgments vii

Neal Devins and Keith E. Whittington Introduction I

David P. Currie Prolegomena for a Sampler: Extrajudicial Interpretation of the Constitution, 1789-1861 18

Bruce G. Peabody Congressional Attitudes toward Constitutional Interpretation 39

Louis Fisher Constitutional Analysis by Congressional Staff Agencies 64

Keith E. Whittington Hearing about the Constitution in Congressional Committees 87

Michael J. Gerhardt The Federal Appointments Process as Constitutional Interpretation 110

John C. Yoo Lawyers in Congress 131

J. Mitchell Pickerill Congressional Responses to Judicial Review 151

Michael J. Klarman Court, Congress, and Civil Rights 173

William N. Eskridge Jr. and John Ferejohn Quasi-Constitutional Law: The Rise of Super-Statutes 198

Neal Devins Congressional Fact Finding and the Scope of Judicial Review 220

Elizabeth Garrett and Adrian Vermeule Institutional Design of a Thayerian Congress 242

Mark Tushnet Evaluating Congressional Constitutional Interpretation: Some Criteria and Two Informal Case Studies 269

Barbara Sinclair Can Congress Be Trusted with the Constitution? The Effects of Incentives and Procedures 293

About the Contributors 313

Index 315