In American Constitutionalism, Third Edition, renowned authors Howard Gillman, Mark A. Graber, and Keith E. Whittington offer an innovative approach to the two-semester Constitutional Law sequence (Volume 1 covers Institutions and Volume II covers Rights and Liberties) that presents the material in a historical organization within each volume, as opposed to the typical issues-based organization. Looking at Supreme Court decisions historically provides an opportunity for instructors to teach-and for students to reflect on-the political factions and climate of the day. The third edition has been updated through the 2020 SCOTUS session, and features updated cases, analysis, illustrations, and figures.

Why free speech is the lifeblood of colleges and universities Free speech is under attack at colleges and universities today, with critics on and off campus challenging the value of open inquiry and freewheeling intellectual debate. Too often speakers are shouted down, professors are threatened, and classes are disrupted. In Speak Freely, Keith Whittington argues that universities must protect and encourage free speech because vigorous free speech is the lifeblood of the university. Without free speech, a university cannot fulfill its most basic, fundamental, and essential purposes, including fostering freedom of thought, ideological diversity, and tolerance. Examining such hot-button issues as trigger warnings, safe spaces, hate speech, disruptive protests, speaker disinvitations, the use of social media by faculty, and academic politics, Speak Freely describes the dangers of empowering campus censors to limit speech and enforce orthodoxy. It explains why free speech and civil discourse are at the heart of the university's mission of creating and nurturing an open and diverse community dedicated to learning. It shows why universities must make space for voices from both the left and right. And it points out how better understanding why the university lives or dies by free speech can help guide everyone-including students, faculty, administrators, and alumni-when faced with difficult challenges such as unpopular, hateful, or dangerous speech. Timely and vitally important, Speak Freely demonstrates why universities can succeed only by fostering more free speech, more free thought-and a greater tolerance for both.

Why colleges and universities live or die by free speech Free speech is under attack at colleges and universities today, as critics on and off campus challenge the value of freewheeling debate. In Speak Freely, Keith Whittington argues that universities must protect and encourage vigorous free speech because it goes to the heart of their mission to foster freedom of thought, ideological diversity, and tolerance. Examining hot-button issues such as trigger warnings, safe spaces, hate speech, disruptive protests, speaker disinvitations, and the use of social media by faculty, Speak Freely describes the dangers of empowering campus censors to limit speech and enforce orthodoxy. It explains why universities must make space for voices from both the Left and Right. And it points out how better understanding why the university lives or dies by free speech can help guide students, faculty, administrators, and alumni when faced with unpopular, hateful, or dangerous speech. Timely and vitally important, Speak Freely shows why universities can succeed only by fostering more free speech, more free thought-and a greater tolerance for both.

The Complete American Constitutionalism is designed to be the comprehensive treatment and source for debates on the American constitutional experience. It provides the analysis, resources, and materials both domestic and foreign readers must understand with regards to the practice of constitutionalism in the United States. This first volume of a projected eight volume set is entitled: Introduction and The Colonial Era. Here the authors provide the building blocks for constitutional analysis with an in-depth exploration of the constitutional conflicts in the seventeenth and eighteenth centuries that formed the overall American constitutional experience. This is the first collection of materials that focuses on the crucial constitutional documents and debates that structured American constitutional understandings at the time of the American Revolution. It details the roots of the common law rights that Americans demanded be respected and the different interpretations of the English constitutional experience that increasingly divided Members of Parliament from American Revolutionaries.

The study of law and politics is one of the foundation stones of the discipline of political science, and it has been one of the most productive areas of cross-fertilization between the various subfields of political science and between political science and other cognate disciplines. This Handbook provides a comprehensive survey of the field of law and politics in all its diversity, ranging from such traditional subjects as theories of jurisprudence, constitutionalism, judicial politics and law-and-society to such re-emerging subjects as comparative judicial politics, international law, and democratization. The Oxford Handbook of Law and Politics gathers together leading scholars in the field to assess key literatures shaping the discipline today and to help set the direction of research in the decade ahead.

Winner: Thomas M. Cooley Book Prize Thomas M. Cooley Book Prize Choice Outstanding Academic Title When the Supreme Court strikes down favored legislation, politicians cry judicial activism. When the law is one politicians oppose, the court is heroically righting a wrong. In our polarized moment of partisan fervor, the Supreme Court's routine work of judicial review is increasingly viewed through a political lens, decried by one side or the other as judicial overreach, or 'legislating from the bench.' But is this really the case? Keith E. Whittington asks in Repugnant Laws, a first-of-its-kind history of judicial review. A thorough examination of the record of judicial review requires first a comprehensive inventory of relevant cases. To this end, Whittington revises the extant catalog of cases in which the court has struck down a federal statute and adds to this, for the first time, a complete catalog of cases upholding laws of Congress against constitutional challenges. With reference to this inventory, Whittington is then able to offer a reassessment of the prevalence of judicial review, an account of how the power of judicial review has evolved over time, and a persuasive challenge to the idea of an antidemocratic, heroic court. In this analysis, it becomes apparent that that the court is political and often partisan, operating as a political ally to dominant political coalitions; vulnerable and largely unable to sustain consistent opposition to the policy priorities of empowered political majorities; and quasi-independent, actively exercising the power of judicial review to pursue the justices' own priorities within bounds of what is politically tolerable. The court, Repugnant Laws suggests, is a political institution operating in a political environment to advance controversial principles, often with the aid of political leaders who sometimes encourage and generally tolerate the judicial nullification of federal laws because it serves their own interests to do so. In the midst of heated battles over partisan and activist Supreme Court justices, Keith Whittington's work reminds us that, for better or for worse, the court reflects the politics of its time.

Should the Supreme Court have the last word when it comes to interpreting the Constitution? The justices on the Supreme Court certainly seem to think so--and their critics say that this position threatens democracy. But Keith Whittington argues that the Court's justices have not simply seized power and circumvented politics. The justices have had power thrust upon them--by politicians, for the benefit of politicians. In this sweeping political history of judicial supremacy in America, Whittington shows that presidents and political leaders of all stripes have worked to put the Court on a pedestal and have encouraged its justices to accept the role of ultimate interpreters of the Constitution.

Whittington examines why presidents have often found judicial supremacy to be in their best interest, why they have rarely assumed responsibility for interpreting the Constitution, and why constitutional leadership has often been passed to the courts. The unprecedented assertiveness of the Rehnquist Court in striking down acts of Congress is only the most recent example of a development that began with the founding generation itself. Presidential bids for constitutional leadership have been rare, but reflect the temporary political advantage in doing so. Far more often, presidents have cooperated in increasing the Court's power and encouraging its activism. Challenging the conventional wisdom that judges have usurped democracy, Whittington shows that judicial supremacy is the product of democratic politics.

When the Supreme Court strikes down favored legislation, politicians cry judicial activism. When the law is one politicians oppose, the court is heroically righting a wrong. In our polarized moment of partisan fervor, the Supreme Court's routine work of judicial review is increasingly viewed through a political lens, decried by one side or the other as judicial overreach, or "legislating from the bench." But is this really the case? Keith E. Whittington asks in Repugnant Laws, a first-of-its-kind history of judicial review. A thorough examination of the record of judicial review requires first a comprehensive inventory of relevant cases. To this end, Whittington revises the extant catalog of cases in which the court has struck down a federal statute and adds to this, for the first time, a complete catalog of cases upholding laws of Congress against constitutional challenges. With reference to this inventory, Whittington is then able to offer a reassessment of the prevalence of judicial review, an account of how the power of judicial review has evolved over time, and a persuasive challenge to the idea of an antidemocratic, heroic court. In this analysis, it becomes apparent that that the court is political and often partisan, operating as a political ally to dominant political coalitions; vulnerable and largely unable to sustain consistent opposition to the policy priorities of empowered political majorities; and quasi-independent, actively exercising the power of judicial review to pursue the justices' own priorities within bounds of what is politically tolerable. The court, Repugnant Laws suggests, is a political institution operating in a political environment to advance controversial principles, often with the aid of political leaders who sometimes encourage and generally tolerate the judicial nullification of federal laws because it serves their own interests to do so. In the midst of heated battles over partisan and activist Supreme Court justices, Keith Whittington's work reminds us that, for better or for worse, the court reflects the politics of its time.

This book argues that the Constitution has a dual nature. The first aspect, on which legal scholars have focused, is the degree to which the Constitution acts as a binding set of rules that can be neutrally interpreted and externally enforced by the courts against government actors. This is the process of constitutional interpretation. But according to Keith Whittington, the Constitution also permeates politics itself, to guide and constrain political actors in the very process of making public policy. In so doing, it is also dependent on political actors, both to formulate authoritative constitutional requirements and to enforce those fundamental settlements in the future. Whittington characterizes this process, by which constitutional meaning is shaped within politics at the same time that politics is shaped by the Constitution, as one of construction as opposed to interpretation.

Whittington goes on to argue that ambiguities in the constitutional text and changes in the political situation push political actors to construct their own constitutional understanding. The construction of constitutional meaning is a necessary part of the political process and a regular part of our nation's history, how a democracy lives with a written constitution. The Constitution both binds and empowers government officials. Whittington develops his argument through intensive analysis of four important cases: the impeachments of Justice Samuel Chase and President Andrew Johnson, the nullification crisis, and reforms of presidential-congressional relations during the Nixon presidency.

Constitutional scholarship has deteriorated into a set of armed camps, with defenders of different theories of judicial review too often talking to their own supporters but not engaging their opponents. This book breaks free of the stalemate and reinvigorates the debate over how the judiciary should interpret the Constitution.

Keith Whittington reconsiders the implications of the fundamental legal commitment to faithfully interpret our written Constitution. Making use of arguments drawn from American history, political philosophy, and literary theory, he examines what it means to interpret a written constitution and how the courts should go about that task. He concludes that when interpreting the Constitution, the judiciary should adhere to the discoverable intentions of the Founders.

Other originalists have also asserted that their approach is required by the Constitution but have neither defended that claim nor effectively responded to critics of their assumptions or their method. This book sympathetically examines the most sophisticated critiques of originalism based on postmodern, hermeneutic, and literary theory, as well as the most common legal arguments against originalists. Whittington explores these criticisms, their potential threat to originalism, and how originalist theory might be reconstructed to address their concerns. In a non-dogmatic and readily understandable way, he explains how originalist methods can be reconciled with an appropriate understanding of legal interpretation and why originalism has much to teach all constitutional theorists. He also shows how originalism helps realize the democratic promise of the Constitution without relying on assumptions of judicial restraint.

This book carefully examines both the possibilities and the limitations of constitutional interpretation and judicial review. It shows us not only what the judiciary ought to do, but what the limits of appropriate judicial review are and how judicial review fits into a larger system of constitutional government. With its detailed and wide-ranging explorations in history, philosophy, and law, this book is essential reading for anyone interested in how the Constitution ought to be interpreted and what it means to live under a constitutional government.