Congress and the Constitution

Congress and the Constitution

Constitutional Conflicts

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Book Pages: 336 Illustrations: 12 tables, 3 figures Published: July 2005

Law, Politics > Political Science

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


“[T]his collection presents a valuable contribution to the literature with its unique perspective on the role legislators play with respect to constitutional interpretation.” — Eileen Braman, Perspectives on Politics

“Beyond its virtue as a “wake-up call,” this book’s range of methodologies enables readers to reflect on which ways of exploring the Congress-Court relationship are likely to yield the most productive insights into the functional relationship between democracy and constitutional law.”
— Richard H. Pildes, Journal of Politics

“Recommended. Upper-division undergraduates and above.” — N.W. Polsby, Choice

“The editors observe that the role of Congress vis-à-vis the Constitution has been an underresearched subject. They hope that their book will help fill this gap and will point the way to future research. It succeeds on both counts...All [chapters] make thoughtful points, and all will repay careful reading by professionals and advanced students.” — Paul Lenchner, Perspectives on Political Science

"One of the strengths of the essays in this volume is that they show very good awareness of recent theoretical and empirical scholarship into how Congress works and integrate these findings into discussions of congressional dealings with the Constitution. This book does not focus merely on evaluating Congress' ability to get the Constitution right; it uses sophisticated understandings of congressional structure and members' incentives to explicate the situations in which Congress interprets the Constitution." — Joseph L. Smith, Law and Politics Book Review

Congress and the Constitution is a timely and provocative book on whether, when, and how Congress thinks about the meaning of the Constitution. The excellent scholarship in this volume raises deep questions about the relationship between Congress and the courts in interpreting the Constitution and sets an agenda for further work in this important area. In so doing, the book makes a significant contribution.” — Elena Kagan, Dean of Harvard Law School

“The subject of this collection—the treatment of the Constitution by legislators in Congress—is both extremely interesting and important, and I do not believe that there is any other single book that is so effective in bringing together a wide range of relevant materials.” — Sanford Levinson, author of Wrestling with Diversity


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Author/Editor Bios Back to Top

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.

Table of Contents Back to Top
Acknowledgments vii

Introduction / Neal Devins and Keith E. Whittington 1

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

Congressional Attitudes toward Constitutional Interpretation / Bruce G. Peabody 39

Constitutional Analysis by Congressional Staff Agencies / Louis Fisher 64

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

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

Lawyers in Congress / John C. Yoo 131

Congressional Responses to Judicial Review / J. Mitchell Pickerill 151

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

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

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

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

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

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

About the Contributors 313

Index 315

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Paper ISBN: 978-0-8223-3612-9 / Cloth ISBN: 978-0-8223-3586-3
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