This text uses original essays, cases, and materials to study the very enterprise by which a constitution is interpreted and a constitutional government created. It explores the American polity as both a constitutional and democratic entity. This volume is organized around a set of basic interrogatives: What is the constitution that is to be interpreted? Who are its authoritative interpreters? How should they go about their interpretive tasks? The new edition has been updated to include important new cases decided through June 2018, including Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and National Institute of Family and Life Advocates v. Becerra. To maintain brevity, the authors have removed a number of cases from the casebook and placed them on the accompanying website.

Americans err in thinking that while their politics may be ailing, their Constitution is fine. Sick politics is a sure sign of constitutional failure. This is Sotirios Barber's message in "Constitutional Failure." Public attitudes fostered by a consumer culture, constitution worship, the lack of a trusted leadership community, and academic historicism and value skepticism--these, this book tells us in clear and bracing terms, are at the root of our political dysfunction.

Barber characterizes the Constitution as a plan of government--a set of means to public purposes like national security and prosperity. He argues that if the government is failing, it's fair to conclude that the plan is failing and that laws that are supposed to serve as means can't in reason continue to bind when they no longer work. He argues further that constitutional success depends ultimately on a stratum of diverse and self-critical citizens, who see each other as moral equals and parts of one national community. These citizens, with the politicians among them, would be good-faith contestants regarding the meaning of the common good and the most effective means to secure it. In this way--showing how the success of a constitutional democracy is more a matter of political attitudes than of institutional performance--Barber's book upends the conventional understanding of constitutional failure. In Barber's analysis, the apparent stability of formal constitutional institutions--usually interpreted as evidence of constitutional health--may actually indicate the defining element of constitutional failure: a mentally inert citizenry no longer capable of constitutional reflection and reform.

At once concise and thorough in its analysis of the concept of constitutional failure and its accounts of a "healthy politics," the corrosive impact of Madisonian checks and balances (as a substitute for trust-worthy leadership), and the outlook for meaningful reform, this book offers a carefully reasoned and provocative assessment of the viability of constitutional governance in the United States.

"Barber elegantly (and convincingly) demonstrates that, once negative constitutionalists impose on government a duty to advance the public welfare by punishing theft and fraud and by enforcing contracts, they concede that there is a constitutional duty to help the less fortunate. Issues of how to do so then become issues of practical judgment and political prudence."--Walter F. Murphy, McCormick Professor of Jurisprudence, Emeritus, Princeton University

"Contrary to the negative-rights vision of the Constitution that pervades the thinking of liberal and conservative constitutional theory, this superb book demonstrates that the general welfare is a primary obligation of government under the Constitution."--Ronald Kahn, James Monroe Professor of Politics, Oberlin College

"In this brilliant book Sotirios Barber follows The Federalist, arguing for a broad and robust understanding of what it means to promote the general welfare."--Jeffrey K. Tulis, University of Texas, Austin

"In this brilliant book Sotirios Barber follows The Federalist, arguing for a broad and robust understanding of what it means to promote the general welfare."--Jeffrey K. Tulis, University of Texas, Austin

"This book is extraordinarily important. It is the most ambitious and realized work of constitutional theory that argues for a positive benefits model of the Constitution. It is also exceptionally well written. The prose is forceful, engaging, and eloquent; the tone is serious and commanding, though disarmingly conversational and accessible. Barber's arguments are at once boldly unconventional and yet derived from traditional sources like Lincoln and The Federalist Papers."--James E. Fleming, FordhamUniversity School of Law

""Welfare and the Constitution" engages in extensive, subtle, and sophisticated inquiry into the obligations that the federal Constitution imposes on government."--Lee Anne Fennell, University of Texas School of Law

The idea that "states' rights" restrain national power is riding high in American judicial and popular opinion. Here, Sotirios A. Barber shows how arguments for states' rights, from the days of John C. Calhoun to the present, have offended common sense, logic, and bedrock constitutional principles. To begin with, states' rights federalism cannot possibly win the debate with national federalism owing to the very forum in which the requisite argument must occur-a national one, thanks to the Civil War-and the ordinary rules of practical argumentation. Further, the political consequences of this self-defeating logic can only hasten the loss of American sovereignty to international economic forces. Both philosophical and practical reasons compel us to consider two historical alternatives to states' rights federalism. In the federalism of John Marshall, the nation's most renowned jurist, the national government's duty to ensure security, prosperity, and other legitimate national ends must take precedence over all conflicting exercises of state power. In "process" federalism, the Constitution protects the states by securing their roles in national policy making and other national decisions. Barber opts for Marshall's federalism, but the contest is close, and his analysis takes the debate into new, fertile territory. Affirming the fundamental importance of the Preamble, Barber advocates a conception of the Constitution as a charter of positive benefits for the nation. It is not, in his view, a contract among weak separate sovereigns whose primary function is to protect people from the central government, when there are greater dangers to confront.

What does it mean to have a constitution? Scholars and students associated with Walter Murphy at Princeton University have long asked this question in their exploration of constitutional politics and judicial behavior. These scholars, concerned with the making, maintenance, and deliberate change of the Constitution, have made unique and significant contributions to our understanding of American constitutional law by going against the norm of court-centered and litigation-minded research. Beginning in the late 1970s, this new wave of academics explored questions ranging from the nature of creating the U.S. Constitution to the philosophy behind amending it.

In this collection, Sotirios A. Barber and Robert P. George bring together fourteen essays by members of this Princeton group--some of the most distinguished scholars in the field. These works consider the meaning of having a constitution, the implications of particular choices in the design of constitutions, and the meaning of judicial supremacy in the interpretation of the Constitution. The overarching ambition of this collection is to awaken a constitutionalist consciousness in its readers--to view themselves as potential makers and changers of constitutions, as opposed to mere subjects of existing arrangements.

In addition to the editors, the contributors are Walter F. Murphy, John E. Finn, Christopher L. Eisgruber, James E. Fleming, Jeffrey K. Tulis, Suzette Hemberger, Stephen Macedo, Sanford Levinson, H. N. Hirsch, Wayne D. Moore, Keith E. Whittington, and Mark E. Brandon.

Considerably shorter than other casebooks, this accessible and engaging title focuses on the controversies over constitutional interpretation leading up to the United States Supreme Court's holdings in Lawrence v. Texas (2003) and Obergefell v. Hodges (2015): namely, that the Constitution's commitments to liberty and equal protection encompass rights of same-sex intimacy and marriage. It also takes up emerging conflicts between protection of constitutional rights for gay men and lesbians, on the one hand, and First Amendment claims of freedom of association and religious liberty by persons who oppose protection of such rights, on the other. This book will be suitable as either the basic text of a one-semester course or as a supplementary text for courses in civil liberties. With five original scholarly essays written by esteemed constitutional scholars, this book looks beyond judicial doctrine and asks whether the current constitutional status of gay rights is consistent with principles that trace back to the American Founding and the Civil War Amendments and that continue to animate American politics.

Ronald Dworkin famously argued that fidelity in interpreting the Constitution as written calls for a fusion of constitutional law and moral philosophy. Barber and Fleming take up that call, arguing for a philosophic approach to constitutional interpretation. In doing so, they systematically critique the competing approaches - textualism, consensualism, originalism, structuralism, doctrinalism, minimalism, and pragmatism - that aim and claim to avoid a philosophic approach. Constitutional Interpretation: The Basic Questions illustrates that these approaches cannot avoid philosophic reflection and choice in interpreting the Constitution. Barber and Fleming contend that fidelity in constitutional interpretation requires a fusion of philosophic and other approaches, properly understood. Within such a fusion, interpreters would begin to think of text, consensus, intentions, structures, and doctrines not as alternatives to, but as sites of philosophic reflection about the best understanding of our constitutional commitments. Constitutional Interpretation: The Basic Questions examines the fundamental inquiries that arise in interpreting constitutional law. In doing so, the authors survey the controversial and intriguing questions that have stirred constitutional debate in the United States for over two centuries, such as: how and for what ends should governmental institutions and powers be arranged; what does the Constitution mean under general circumstances and how should it be interpreted during concrete controversies; and finally how do we decide what our constitution means and who ultimately decides its meaning.

"The United States Supreme Court", writes Sotirios A. Barber, "is being strangled by the combined forces of skillful enemies and incompetent friends, forces united in their inability either to grasp or to tolerate constitutional law as an independent moral voice in American politics". In The Constitution of Judicial Power Barber takes on these enemies and friends of the Court, attacking New Right ideas about constitutional interpretation as well as the ideas of liberals who have abandoned the classical constitutionalism that alone justifies Warren-era activism. Barber begins by reviewing the basic arguments of the New Right, with special attention to those of Robert Bork and Walter Berns. He then demonstrates that judicial activism, long scorned by the Court's bitterest critics, is part of a constitutional philosophy deeply rooted in The Federalist Papers - despite conservatives' frequent claims to know the framers' "original intent". Barber shows that New Right theorists, such as Bork, and establishment liberals, such as Ronald Dworkin, are moral relativists who cannot escape conclusions ("might makes right", for example) that could destroy constitutionalism in America. The best hope for American freedoms, Barber argues, is to revive classical constitutionalism - and he explains how new movements in philosophy today allow the Court's friends to do just that. Written in a lively and engaging style, The Constitution of Judicial Power is certain to provoke controversy among constitutional experts and general readers alike. Barber offers a lucid explanation and penetrating analysis of the current debate over the Court - and why it matters. He reaffirms that simple justice - and not"original intent" - undergirds the constitution of judicial power.