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Bibliography for Constitutional Law, History and
Theory
Updated 6.27.04
Occasionally students will ask me for
recommendations beyond what I require as reading in the class to fill in
gaps in their education regarding American history, legal history, and
constitutional history. What follows is a brief critical bibliography on a
variety of topics, which I will update from time-to-time.
Constitutional History
The American Revolution and the Founding of the United States
If you are a bit hazy on “1776 and all that,” there are two brief works
that provide an excellent overview of the troubles with Britain that
resulted in our declaring our independence and forming the United States
of America: Edmund M. Morgan, The Birth of the Republic, 1767-1783 (3rd
ed., 1992) and Gordon S. Wood, The American Revolution: A History (2002).
Constitutional Development Prior to the Philadelphia Convention
You should either read Gordon S. Wood, Creation of the American Republic
(1969), which is a definitive work, or read the first few chapters of
David Kyvig, Explicit and Authentic Acts (1996), which is a history of the
amendment of the U.S. Constitution. See also Richard B. Morris, The
Forging of the Union 1781-1789 (1987), which is also good on the framing
and ratification.
The 1787 Philadelphia Convention
Framing
In addition to the Farrand book, which I assign, there are a few popular
accounts: Carol Berkin, A Brilliant Solution: Inventing the American
Constitution (2002); Catherine Drinker Bowen, Miracle at Philadelphia (1966);
Christopher Collier and James Lincoln Collier, Decision in Philadelphia
(1986) are well-known, and fairly well-written. The best, I think, is
Clinton Rossiter, 1787: The Grand Convention (1967), which is, alas, out
of print. It is comprehensive without being dull, sophisticated without
being too academic, and extremely well written. Rossiter’s wit helps you
get through the slow parts. For die-hards, there is always the Records of
the Federal Convention of 1787 (3 vol., rev. ed., 1967) edited by Max
Farrand. You might laugh, but reading the words of the delegates
themselves, one can almost be transported to that airless Philadelphia
room in the summer of 1787 and get a feel for the ebb and flow of the
debate. Jack Rakove’s Original Meanings (1996) gives a good accounting of
how the Framers understood themselves and how they intended their work to
be interpreted. See also Daniel A. Farber & Suzanna Sherry, A History of
the U.S. Constitution (1990), which has excerpts from Madison’s notes, as
well as excerpts on the framing of the Reconstruction Amendments.
Ratification
For works on the ratification, I highly recommend reading the original
critiques of the proposed constitution made by the “Antifederalists,” as
they were known by the proponents of ratification who answered them and
who called themselves “Federalists.” The essays by “Publius” (James
Madison, Alexander Hamilton, and John Jay) published as The Federalist
Papers give the pro-ratification position. For the opponents, see The
Anti-federalist: Writings by Opponents of the Constitution (Herbert J.
Storing ed., 1985) (an abridgement of the multivolume The Complete
Anti-federalist (Herbert J. Storing ed., 1981)) and Herbert J. Storing,
What the Anti-federalists Were For (1981). For a collection of essays,
pamphlets, and speeches from both opponents and proponents of
ratification, see The Debate on the Constitution (Bernard Bailyn ed.,
1995).
General Constitutional History
The most up-to-date text is Melvin Urofsky and Paul Finkelman, A March of
History (2 vol. 2002), which also has a 2 volume documentary supplement.
Also very good, if dated, is Charles Warren, The Supreme Court in United
States History (2 vol., 1922). The New American Nation series, published
by Harper & Row contains volumes that address constitutional development
at particular periods in American history; these are usually quite good.
See Hyman & Wiecek, Equal Justice Under Law: Constitutional Development
1835-1875 (1982); Beth, The Development of the American Constitution,
1877-1917 (1971); and Murphy, The Constitution in Crisis Times, 1918-1969
(1972). Also not to be missed are the volumes by David P. Currie, The
Constitution in Congress. Volume 1, which covers the early republic
through the election of 1800 was published in 1997; volume 2, which covers
1800-1829 was published in 2001. A third volume covering the Jacksonian
period is due in 2004. These are wonderful works chronicling
constitutional arguments made by the executive and legislative branches in
American history. A wonderful sequel to his 2 volume work, The
Constitution in the Supreme Court (see below). Finally, I recommend
Michael Kammen’s A Machine that Would Go of Itself (1986); a “cultural
history” of the Constitution, and our relationship to it. Though it is not
pure legal history, it is a fascinating account of how the Constitution
has become an outward and visible sign of our inward and invisible
commitment to the rule of law and to constitutionalism.
Supreme Court History
There are many books on the Supreme Court as an institution and on its
history whose quality varies considerably. The best current introduction
to both the Supreme Court and to constitutional law is Richard H.
Fallon, Jr., Our Dynamic Constitution: An Introduction to American
Constitutional Law (2004). I highly recommend it to anyone seeking
an historical and doctrinal overview. David P. Currie’s two-volume
The Constitution in the Supreme Court (1985, 1990) provides a more
detailed examination of the Court’s treatment of constitutional issues over time. The
Oliver Wendell Holmes Devise History of the Supreme Court of the United
States is supposed to be the definitive work on the history of the Court,
but is too long and too detailed for most student needs. Many of its
volumes, however, are invaluable sources of information. Though I’ve tried
to list primarily general surveys, I would be remiss if I didn’t mention
Lucas A. Powe, The Warren Court and American Politics (2000), which does a
masterful job of analyzing one of the most controversial periods of the
Court’s history in its proper historical context.
Constitutional Theory
A good primer is Stephen M. Griffin, American Constitutionalism: From
Theory to Practice (1996). Michael J. Gerhardt, et al., Constitutional
Theory: Arguments and Perspectives (2nd ed., 2000) offers both excerpts
and analysis. John H. Garvey & T. Alexander Aleinikoff, Modern
Constitutional Theory: A Reader (4th ed., 1999) provides much the same.
The first volume of the 3d edition of Larry Tribe’s treatise, infra,
offers in-depth analysis of the various trends in contemporary
constitutional theory, with citations.
Much constitutional theory after 1954 concerned controversies over the
legitimacy of judicial review, and when it should be exercised. The
literature is overwhelming, but the following could be described as the
“canonical” works: Alexander M. Bickel, The Least Dangerous Branch: The
Supreme Court at the Bar of Politics (1962); Learned Hand, The Bill of
Rights (1958); Charles L. Black, Jr., The People and the Court (1960) and
Structure and Relationship in Constitutional Law (1969); John Hart Ely,
Democracy and Distrust (1980); Philip Bobbitt, Constitutional Fate: Theory
of the Constitution (1982). The conservative case against “activist”
judicial review can be found in Robert H. Bork, The Tempting of America
(1990) and Raoul Berger, Government by Judiciary (1977). For a lucid and
illuminating summary, as well as trenchant critique, of contemporary
constitutional theorists on the left and the right, see Dan Farber and
Suzanna Sherry, Desperately Seeking Certainty: The Misguided Quest for
Constitutional Foundations (2002).
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