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Constitutional Deliberation in Congress

The Impact of Judicial Review in a Separated System

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Constitutional Conflicts

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Book

Pages: 208

Illustrations: 11 tables, 4 figures

Published: May 2004

Author: J. Mitchell Pickerill

In Constitutional Deliberation in Congress J. Mitchell Pickerill analyzes the impact of the Supreme Court’s constitutional decisions on Congressional debates and statutory language. Based on a thorough examination of how Congress responds to key Court rulings and strategizes in anticipation of them, Pickerill argues that judicial review—or the possibility of it—encourages Congressional attention to constitutional issues. Revealing critical aspects of how laws are made, revised, and refined within the separated system of government of the United States, he makes an important contribution to “constitutionalism outside the courts” debates.

Pickerill combines legislative histories, extensive empirical findings, and interviews with current and former members of Congress, congressional staff, and others. He examines data related to all of the federal legislation struck down by the Supreme Court from the beginning of the Warren Court in 1953 through the 1996–97 term of the Rehnquist Court. By looking at the legislative histories of Congressional acts that invoked the Commerce Clause and presented Tenth Amendment conflicts—such as the Child Labor Act (1916), the Civil Rights Act (1965), the Gun-Free School Zones Act (1990), and the Brady Bill (1994)—Pickerill illuminates how Congressional deliberation over newly proposed legislation is shaped by the possibility of judicial review. The Court’s invalidation of the Gun-Free School Zones Act in its 1995 ruling United States v. Lopez signaled an increased judicial activism regarding issues of federalism. Pickerill examines that case and compares congressional debate over constitutional issues in key pieces of legislation that preceded and followed it: the Violence Against Women Act of 1994 and the Hate Crimes Prevention Act of 1997. He shows that Congressional attention to federalism increased in the 1990s along with the Court’s greater scrutiny.

Praise

"[T]hought-provoking. . . . [This book] give[s] us new insights. . . . Pickerill's analysis is straightforward, detailed, and persuasive." - Keith Whittington, University of Chicago Law Review

"[W]ell-written. . . . This book deserves serious attention by all public law scholars, political scientists more broadly defined, and politically active persons. The author provides the proper balance of case law with legislative history and quantitative analysis by employing appropriate conceptual approaches and methods. . . . Happily, this book is also a quick read that instructors may find as an appropriate addition to course syllabi for a wide range of political science courses." - Albert P. Melone , Law and Politics Book Review

"Pickerill has produced a very strong piece of careful and detailed political science scholarship. . . ." - Mark C. Miller , Judicature

“Legal scholars have recently questioned judicial review on the ground that constitutional deliberation should be returned to the people and their political representatives. Drawing from case studies of several federal statutes invalidated by the Supreme Court, Mitch Pickerill thoughtfully suggests that serious constitutional discourse in the legislature is unlikely unless the Court continues to exercise its power of judicial review. I found his argumentation persuasive as well as informative. Constitutional Deliberation in Congress is well worth reading by lawyers as well as by students of American government.” - William N. Eskridge Jr., Yale Law School

“Constitutional Deliberation in Congress brings to light important new evidence regarding how Congress and the Court relate to one another in constitutional cases, and it provides the first high-quality and systematic examination of how Congress responds to judicial invalidations of its legislation.” - Keith Whittington, Princeton University

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Author/Editor Bios Table Of Contents Rights Additional Information

Author/Editor Bios

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J. Mitchell Pickerill is Assistant Professor of Political Science at Washington State University.

Table Of Contents

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List of Tables and Figures  ix
Acknowledgments  xi
Introduction  1
1. Constitutional Deliberation in a Separated System  11
2. Judicial Review: Roadblock, Speed Bump, or Detour?  31
3. The Shadows of Uncertain Scrutiny: Legislating in a Period of Judicial Dualism  63
4. The Missing Constitution: Legislating in the Darkness of Judicial Deference  95
5. The Nature of Things: Anticipation and Negotiation, Interaction and Reaction  133
Appendix A. Judicial Review Decisions and Relevant Legislation (Chapter 2 Dataset)  155
Appendix B. In-Depth Interviews  161
Notes  167
Table of Cases  175
Bibliography  177
Index  183

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Additional Information

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Paper ISBN: 978-0-8223-3262-6 / Hardcover ISBN: 978-0-8223-3235-0 / eISBN: 978-0-8223-8567-7 / DOI: https://doi.org/10.1215/9780822385677

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