SUNY series in American Constitutionalism

Examines the role of constitutional ambiguity across the entire spectrum of American history and how it impacts our interpretation of presidential power.

While the rise of autocratic presidential powers has been widely noted by scholars in recent years, with calls by some for a stronger or more accountable presidency, Constitutional Ambiguity and the Interpretation of Presidential Power is among the first entirely dedicated to a study of the impact of this ambiguity on how scholars, judges, and presidents have understood executive power. Embarking on a detailed examination of legal, historical, and political science literature across the broad scope of American history, Richard W. Waterman examines the concerns of the Constitution's Framers regarding the fear of monarchy and a tyrannical president. He then discusses the writing and ratification of the Constitution and by drawing on insights from the time of the Framers to the present day, he provides a unique historical timeline related to the discussion and analysis of constitutional ambiguity. Over the course of several chapters, he finds that no sole theory defines presidential power, and ambiguity rules the day, allowing presidents to find power in the Constitution's silences as well as its various nooks and crannies, which has led to the very real danger of an autocratic presidency.

Chronicles the efforts of the first Chief Justice of the US Supreme Court to establish a federal court system during the country's uncertain early years.

Finalist for the 2022 Foreword INDIES Book of the Year Award in the History Category

The first Chief Justice of the United States, John Jay faced many unique challenges. When the stability and success of the new nation were far from certain, a body of federalized American law had to be created from scratch. In The First Chief Justice, New York State Appellate Judge Mark C. Dillon uncovers, for the first time, how Jay's personal, educational, and professional experiences-before, during, and after the Revolutionary War-shaped both the establishment of the first system of federal courts from 1789 to 1795 and Jay's approach to deciding the earliest cases heard by the Supreme Court. Dillon takes us on a fascinating journey of a task accomplished by constant travel on horseback to the nation's far reaches, with Jay adeptly handling the Washington administration, Congress, lawyers, politicians, and judicial colleagues. The book includes the history of each of the nine cases decided by Jay when he was Chief Justice, many of which have proven with time to have enduring historical significance. The First Chief Justice will appeal to anyone interested in the establishment of the US federal court system and early American history.

Examines how state courts change public policy through an analysis of their influence on state education finance reform.

Power, Constraint, and Policy Change analyzes state court influence on state education finance reform. Beginning in the early 1970s litigants began filing suits in state courts to change state education funding in order to prevent disparities in education resources between wealthy and poor communities. These cases represent a fundamental policy debate in American society, pitting the importance of education against the cost and method of funding it. Through education finance, the authors explore how and why courts often end up determining and resolving policy funding debates. Education funding has involved both the federal constitution and state constitutions, as well as legislation and court-mandated remedies, which, ultimately, determine who and how we pay for this critical American value.

A study of John Marshall's political thought with special emphasis on his views of constitutional legitimacy, sovereignty, citizenship, and national identity.

John Marshall's Constitutionalism is an exploration of Supreme Court Chief Justice John Marshall's political thought. Often celebrated and occasionally derided as a force in the creation of American jurisprudence and the elevation of the American Supreme Court, Marshall is too seldom studied as a political thinker. Clyde H. Ray explores this neglected dimension of Marshall's thought by examining his constitutional theory in the context of several of his most important Supreme Court opinions, arguing that Marshall's political theory emphasized the federal Constitution's fundamental legitimacy; its sovereignty over national and state government policy; its importance in defining responsible citizenship; and its role in establishing a Constitution-based form of American nationalism. This cross-disciplinary argument illustrates Marshall's devotion to the Constitution as a new source of national identity during the early national period. Furthermore, Ray argues that Marshall's constitutionalism makes important contributions not only to our understanding of American constitutionalism during his time, but also conveys important lessons for readers seeking a better understanding of the Constitution's role in the United States today.

Traces the US Supreme Court's effect on federal government growth from the founding era forward.

This book explores the US Supreme Court's impact on the constitutional development of the federal government from the founding era forward. The author's research is based on an original database of several hundred landmark decisions compiled from constitutional law casebooks and treatises published between 1822 and 2010. By rigorously and systematically interpreting these decisions, he determines the extent to which the court advanced and consolidated national governing authority. The result is a portrait of how the high court, regardless of constitutional issue and ideology, persistently expanded the reach and scope of the federal government.

Examines the causes and consequences of recusal behavior on the US Supreme Court.

Do US Supreme Court justices withdraw from cases when they are supposed to? What happens when the Court is down a member? In Ethics and Accountability on the US Supreme Court, Robert J. Hume provides the first comprehensive examination of the causes and consequences of recusal behavior on the Supreme Court. Using original data, and with rich attention to historical detail including media commentary about recusals, he systematically analyzes the factors that influence Supreme Court recusal, a process which has so far been shrouded in secrecy. It is revealed that justices do not strictly follow the recusal guidelines set by Congress, but at the same time they do not ignore these rules. Overall, justices are selective in their compliance with the recusal statute, balancing ethical considerations against other institutional and policy goals, such as the duty to sit. However, the book also concludes that the impact of recusals on policymaking is more limited than commentators have claimed, raising questions about whether ethics reform is really needed at this time.

Examines the significant gaps between what New York State's constitution says and how the state is actually governed and offers ideas for reform.

On its face, New York State's constitution is an elaborate and impressive aggregation of processes, powers, mandates, and limits. But many of these are "inoperative," and New Yorkers who read the document and believe what it says will come away with a massive misunderstanding of the realities of state government. The essays in New York's Broken Constitution seek to clarify the realities by bringing attention to the gaps between what the constitution says and how the state is actually governed, and they provide a disquieting picture of the state of the state's constitution. Among the topics addressed are state debt and budgeting practices, legislative redistricting, local government, gambling, conservation, and the process of amending the constitution. Written by knowledgeable professionals, the chapters explain the constitutional provisions in question, including the reasons for their constitutional status; how they have been used and interpreted; and the extent of the gaps between the constitutional provisions and practice. Various proposals for reform are also examined.

Leading scholars and legal practitioners explore constitutional, legal, and philosophical topics.

In Constitutionalism, Executive Power, and the Spirit of Moderation, contributors ranging from scholars to practitioners in the federal executive and judicial branches blend philosophical and political modes of analysis to examine a variety of constitutional, legal, and philosophical topics. Part 1, "The Role of Courts in Constitutional Democracy," analyzes the proper functions and limits of the judiciary and judicial decision making in constitutional government. Part 2, "Law and Executive Authority," reflects on the tensions between constitutionalism and presidential leadership in both domestic and international arenas. Part 3, "Liberal Education, Constitutionalism, and Philosophic Moderation," shifts the focus to the relationship between constitutionalism and political philosophy, and especially to the modern modes of philosophy that most directly influenced the American Founders. A valuable resource for specialists, the book also will be of use in political science and law school classes.

Examines how the Supreme Court has banished free expression from shopping malls and other public spaces.

In spite of their public attractions and millions of visitors, most shopping malls are now off-limits to free speech and expressive activity. The same may be said about many other public spaces and marketplaces in American cities and suburbs, leaving scholars and other observers to wonder where civic engagement is lawfully permitted in the United States. In Public Spaces, Marketplaces, and the Constitution, Anthony Maniscalco draws on key legal decisions, social theory, and urban history to demonstrate that public spaces have been split apart from First Amendment protections, while the expression of political ideas has been excluded from privately owned, publicly accessible malls. Today, the traditional indoor suburban shopping mall, that icon of modern American capitalism and culture, is being replaced by outdoor retail centers. Yet the law and courts have been slow to catch up. Maniscalco argues that scholars, students, and the public must confront these innovations in commercial design and consumer practices, as well as what they portend for contemporary metropolitan America and its civic spaces.

Examines and measures the extent to which statutory language affects judicial behavior.

How does the language of legislative statutes affect judicial behavior? Scholars of the judiciary have rarely studied this question despite statutes being, theoretically, the primary opportunity for legislatures to ensure that those individuals who interpret the law will follow their preferences. In Checking the Courts, Kirk A. Randazzo and Richard W. Waterman offer a model that integrates ideological and legal factors through an empirical measure of statutory discretion. The model is tested across multiple judicial institutions, at both the federal and state levels, and reveals that judges are influenced by the levels of discretion afforded in the legislative statutes. In those cases where lawmakers have clear policy preferences, legislation encourages judges to strictly interpret the plain meaning of the law. Conversely, if policy preferences are unclear, legislation leaves open the possibility that judges will make decisions based on their own ideological policy preferences. Checking the Courts thus provides us with a better understanding of the dynamic interplay between law and ideology.

Innovative examination of the tensions between universal and more uniquely American definitions of cherished rights.

Are constitutional rights based exclusively in uniquely American considerations, or are they based at least in part on principles that transcend the boundaries of any particular country, such as the requirements of freedom or dignity? By viewing constitutional law through the prism of this fundamental question, Universal Rights and the Constitution exposes an overlooked difficulty with opinions rendered by the Supreme Court, namely, an inherent ambiguity about the kinds of arguments that count in constitutional interpretation, which weakens the foundations of our most cherished rights.

Rejecting current debates over constitutional interpretation as flawed, Stephen A. Simon offers an innovative framework designed to provide clearer foundations for rights interpretations while preserving a meaningful but limited role for universal arguments. He reveals the vital connections among contemporary debates over such matters as the right to privacy, the constitutionality of the death penalty, and the role of foreign law in constitutional interpretation.

Examines how the president balances the competing demands of leading his political party and leading the nation.

Throughout their time in office, American presidents are often forced to choose between leading the nation and leading their party. In an earlier time when the major parties were less polarized, this leadership dilemma, while challenging, was not nearly as vexing as it is today. American presidents now find themselves with little room to maneuver, compelled to serve the Constitution on the one hand and yet caught within bitter partisan disputes and large numbers of unaffiliated voters on the other. The contributors to this volume investigate how recent presidents have navigated these increasingly rocky political waters. Focusing on campaign strategy, presidential rhetoric, relations with Congress, domestic and foreign policy, The Presidential Leadership Dilemma presents a wide-ranging, detailed, and fascinating study of how contemporary presidents face the challenge at the heart of every presidency.

Examines whether race-based programs and slavery reparations are justified.

Among the most controversial issues in the United States is the question of whether public or private agencies should adopt preferential treatment programs or be required to pay reparations for slavery. Using a carefully reasoned philosophical approach, Stephen Kershnar argues that programs such as affirmative action and calls for slavery reparations are unjust for three reasons. First, the state has a duty to direct resources to those persons who, through their abilities, will benefit most from them. Second, he argues that, in the case of slavery, past injustice-where both the victims and perpetrators are long dead-cannot ground current claims to compensation. As terrible as slavery was, those who claim a right to compensation today owe their existence to it, he reasons, and since the events that bring about a person's existence are normally thought to be beneficial, past injustices do not warrant compensation. Finally, even if past injustices were allowed to serve as the basis of compensation in the present, other variables prevent a reasonable estimation of the amount owed.

Traces the history of the writ of habeas corpus and its influence on federal-state relations.

The writ of habeas corpus is the principal means by which state prisoners, many on death row, attack the constitutionality of their conviction in federal courts. In The Body and the State, Cary Federman contends that habeas corpus is more than just a get-out-of-jail-free card-it gives death row inmates a constitutional means of overturning a jury's mistaken determination of guilt. Tracing the history of the writ since 1789, Federman examines its influence on federal-state relations and argues that habeas corpus petitions turn legal language upside down, threatening the states' sovereign judgment to convict and execute criminals as well as upsetting the discourse, created by the Supreme Court, that the federal-state relationship ought not be disturbed by convicted criminals making habeas corpus appeals. He pays particular attention to the changes in the discourse over federalism and capital punishment that have restricted the writ's application over time.

Explores the foundations of various state constitutional traditions.

State constitutions have become increasingly important in light of recent trends in jurisprudence that favor decentralizing the American federal system. Ex Uno Plura uses a political culture approach to explore eight state constitutional traditions. McHugh argues that state jurisprudence is not merely a reflection of the process, values, and decisions found at the federal level, especially through the influence of the Fourteenth Amendment. A close examination of separate state constitutions, including their origins, sociopolitical cultures, and jurisprudence, reveals historically, culturally, and philosophically unique characteristics, each of which will contribute to the ongoing debate concerning American judicial federalism. The states included are Alaska, California, Georgia, Hawaii, Louisiana, Utah, Vermont, and Wyoming.

Studies interest group litigation in Canada.

In the first book-length study of interest group litigation in Canada, Friends of the Court traces the Canadian Supreme Court's ever-changing relationship with interest groups since the 1970s. After explaining how the Court was pressured to welcome more interest groups in the late 1980s, Brodie introduces a new theory of political status describing how the Court privileges certain groups over others. By uncovering the role of the state in encouraging and facilitating litigation, this book challenges the idea that interest group litigation in Canada is a grassroots phenomenon.

Examines recent debates in constitutional theory in light of the work of Alexander Bickel.

The role courts should play in American democracy has long been contested, fueling debates among citizens who take an active interest in politics. Alexander Bickel made a significant contribution to these debates with his seminal publication, The Least Dangerous Branch, which framed the problem of defending legitimate judicial authority. This book addresses whether or not the countermajoritarian difficulty outlined in Bickel's work continues to have significance for constitutional theory almost a half-century later. The contributors illustrate how the countermajoritarian difficulty and Bickel's response to it engage prominent theories: the proceduralisms of John Hart Ely and Jeremy Waldron; the republicanisms of Bruce Ackerman and Cass Sunstein; and the originalisms of Raoul Berger, Robert Bork, and Keith Whittington. In so doing, this book provides a useful introduction to recent debates in constitutional theory and also contributes to the broader discussion about the proper role of the courts.

Unveils the considerable policy-making powers of state supreme courts.

Despite having the final word on many policy issues, state supreme courts have received much less scholarly attention than the United States Supreme Court. Examining these often neglected institutions, this book demonstrates that by increasing our knowledge of the behavior of state supreme court judges across differing areas of law, we can enrich our understanding of the function of state supreme courts, and the relations between these institutions and other branches of government. In addition, Judicial Review in State Supreme Courts advances our conceptualization of the judiciary and offers a more general theory about judicial behavior, accountability, and the role of courts in American society. Langer looks at the policy-making powers of state supreme courts, and the conditions under which justices are most likely to review and invalidate state laws, portraying judges as forward thinking individuals who pursue both policy and electoral goals.

Comparative study of American and Canadian constitutionalism, especially rights jurisprudence.

The Canadian constitutional reforms of 1982, which included a Charter of Rights and Freedoms analogous to the American Bill of Rights, brought about a convergence with American constitutional law. As in the U.S., Canadian courts have shown themselves highly protective of individual rights, and they have not been shy about assuming a leading and sometimes controversial political role in striking down legislation. In clear and easy-to-understand language, the contributors not only chart, but also explore, the reasons for areas of similarity and difference in the constitutional politics of Canada and the United States.

Combines perspectives from law and the social sciences to assess the long-term impact of the 2000 presidential election.

The resolution of the 2000 presidential election by the U.S. Supreme Court's Bush v. Gore decision generated an extraordinary outpouring of literature in a very short period of time. Now that the initial furor over the decision has subsided, The Final Arbiter presents a sober consideration of the consequences of the decision for the law, the presidency, and the legitimacy of the American political system. The contributors include well-established names in law and political science, as well as up-and-coming scholars, offering a broad understanding of Bush v. Gore's long-term impact. This book will be useful as a classroom text in both survey courses on elections and the courts and for advanced courses that consider the impact of judicial rulings on the government and political process.

The first sustained examination of the process by which justices elect to leave the United States Supreme Court.

While much has been written on Supreme Court appointments, Deciding to Leave provides the first systematic look at the process by which justices decide to retire from the bench, and why this has become increasingly partisan in recent years. Since 1954, generous retirement provisions and decreasing workloads have allowed justices to depart strategically when a president of their own party occupies the White House. Otherwise, the justices remain in their seats, often past their ability to effectively participate in the work of the Court. While there are benefits and drawbacks to various reform proposals, Ward argues that mandatory retirement goes farthest in combating partisanship and protecting the institution of the Court.

Collection of quotations and judicial opinions of federal appellate judge Richard A. Posner

A collection of pithy and penetrating observations and rulings by one of the most famous appellate judges in America, The Quotable Judge Posner showcases the wit and wisdom of Richard A. Posner. During his more than twenty-five years as a federal appellate judge, Judge Posner reached over 2,000 opinions, many of which are cited frequently in the opinions of Supreme Court Justices. This anthology presents the judge's entertaining and insightful observations on fifty wide ranging topics, from Abortion to Telecommunications to Zoning and Planning. Law students who have encountered Judge Posner's judicial opinions will benefit from this collection, as will general readers who will enjoy Posner's trenchant comments on American society, constitutional norms, and legal culture.

Nationally recognized experts analyze how states deal with major constitutional issues.

This third and final volume in a series devoted to state constitutions analyzes how these documents address major constitutional issues such as the protection of rights; voting and elections; constitutional change; the legislature; the executive; the judiciary; taxing, spending, and borrowing; local government; education; and the environment. Contributors identify the strengths and weaknesses of current state constitutions, highlight the major issues confronting the states, and assess various approaches for reform.

Analysis of concurrent opinion writing by Supreme Court justices.

When justices write or join a concurring opinion, they demonstrate their preferences over substantive legal rules. Concurrences provide a way for justices to express their views about the law, to engage in a dialogue of law with each other, the legal community, the public, and Congress. This important study is the first systematic examination of the content of Supreme Court concurrences. While previous work on Supreme Court decision making focuses solely on the outcome of cases, Pamela C. Corley tackles the content of Supreme Court concurring opinions to show the reasoning behind each justice's decision. Using both qualitative and quantitative methods of analysis, Concurring Opinion Writing on the U.S. Supreme Court offers a rich and detailed portrait of judicial decision making by studying the process of opinion writing and the formation of legal doctrine through the unique lens of concurrences.

Pamela C. Corley is Assistant Professor of Political Science at Vanderbilt University.

Examines the critical role assumed by the U. S. judiciary in balancing concerns about national security with the protection of liberty after the terrorist attacks of September 11, 2001.

The terrorist attacks of September 11, 2001, and the subsequent responses by the U.S. federal government have raised fundamental questions about civil liberties in both domestic and international laws. As a result, the U.S. judiciary, out of its responsibility for interpreting the Constitution, has assumed a crucial role in defining boundaries of domestic and foreign policy, and in balancing concerns about security with the protection of liberty. Utilizing a sophisticated blend of quantitative and qualitative analysis, Kirk A. Randazzo examines two main questions: To what extent do federal judges defend liberty or champion security when adjudicating disputes? And to what extent does the hierarchal structure of the federal judiciary influence decisions by lower court judges? There are, he argues, disturbing indications that the federal judiciary as a whole are not defenders of liberty. Furthermore, lower court judges strategically anticipate the decisions of higher courts and constrain their behavior to avoid reversal.

Engaging case studies on the impact of state sovereign immunity on both plaintiffs and states.

The Supreme Court's recent spate of state sovereign immunity rulings have protected states from lawsuits based on federal legislation as diverse as disabilities law, age discrimination, patent and trademark law, and labor standards. But does the doctrine of state sovereign immunity increase state authority? Does it undermine federal antidiscrimination statutes? Is it an effective means to revive a more robust version of federalism, shifting the balance of power toward states and away from the federal government, and if so, what are the costs and implications of such an approach? This book explores these questions through engaging historical case studies and traces the impact of state sovereign immunity on both plaintiffs and states. Demonstrating that the doctrine's primary effect is felt most keenly by the weakest and most politically unpopular individuals, Christopher Shortell's findings challenge arguments from both proponents and opponents of state sovereign immunity.

State Constitutions for the Twenty-first Century, Volume 1
The Politics of State Constitutional Reform

State Constitutions for the Twenty-first Century, Volume 2
Drafting State Constitutions, Revisions, and Amendments

State Constitutions for the Twenty-first Century, Volume 3
The Agenda of State Constitutional Reform

The first systematic analysis of the obstacles to state constitutional reform.

Through illuminating case studies of reform efforts in Alabama, California, Colorado, Florida, New York, and Virginia, this book-the first of three volumes-provides the first systematic analysis of the political obstacles to state constitutional reform. For those seeking constitutional reform, this useful resource can spell the difference between success and failure, and for those interested in state politics or constitutional politics, it offers rare insight into a distinctive aspect of American constitutionalism. Written by eminent scholars who were, in many cases, also active participants in the reform campaign, the essays provide practical experience, expert analysis, and lessons for future constitutional reformers.

Identifies problems reformers face in drafting or amending state constitutions.

Constitutional reform requires not only good ideas but also the ability to translate those ideas into language that will effectuate the drafters' aims. This book-the second of three volumes on state constitutions-is the essential guide for those involved in constitutional reform. It identifies the recurrent problems that reformers face in drafting or amending state constitutions and explores how those problems might be addressed. It also explains why drafting state constitutions is a distinctive enterprise, different from the drafting of other legal documents.