Book Review: Constitution 101

 

shutterstock_219829600If you want to learn about constitutional law without going to law school, the first thing you should do, of course, is listen to the Law Talk Podcast. But after that, you should check out The Constitution: An Introduction, the new book by law professor Michael Stokes Paulsen and his son, Luke. My review of the book is now available at City Journalbut here’s a summary.

The book’s first half provides an overview of the Constitution’s key provisions and an introduction to the major schools of constitutional interpretation, including the authors’ own originalist perspective. The second half offers a condensed history of American constitutional law. With sidebars on many of the personalities who shaped constitutional doctrine—not just judges, but politicians and litigants too—the book does an excellent job of placing legal controversies in historical context.

Some of you will already know Professor Paulsen, particularly for his vociferous criticisms of Roe v. Wade, the source of our modern American “right” to abortion on demand, including the essay that Troy commented on here in 2013. The Paulsens do not discuss Roe until late in the book, but in some ways that 1973 decision shapes the entire narrative. Every bad trend in American jurisprudence — from Dred Scott on — is seen as a prelude to the kind of judicial activism that produced Roe.

The Paulsens’ approach has many advantages, but also disadvantages. On the good side, the book is appropriately harsh in critiquing the modern era of judicial activism, taking on such progressive certainties as the famous Miranda warnings, the prohibition against school prayer, and the legitimacy of state sponsored affirmative action as pure inventions of agenda-driven judges.

On the less-good side, in order to arrive at their critique of the modern Supreme Court, the authors have crammed too much Supreme Court history into a simplified narrative in which “substantive due process” — the legal doctrine at the heart of activist decisions like Roe v. Wade — is the central villain. Unfortunately, the authors pay insufficient attention to the crucial structural issues in constitutional law: separation of powers and, particularly, federalism. The constitution’s framers believed that rights were best protected through local democracy, not by judicial fiat.

If you want to see the full review at City Journal, you can read it here.

Published in General, Law
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  1. Ricochet Moderator
    Ricochet
    @OldBathos

    Since none of the drafters and signers was openly gay, trans or even cis female, is it still binding? And isn’t the whole precedent thing backwards? i.e., all the stuff BEFORE Roe v. Wade must be wrong, correct?
    Justice Ginsberg has spoken of the need to harmonize our legal culture with that of the rest of the world. Why limit ourselves to Anglo-American common law or American constitional law when Apache, Bedouin or Mongol tribal traditions have so much more to offer?
    It has been a while since I was in law school and I am pretty sure that we are only one or two elections away from wiping out pretty much everything they taught me about American law back then.

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