Hostname: page-component-586b7cd67f-tf8b9 Total loading time: 0 Render date: 2024-11-25T22:21:02.523Z Has data issue: false hasContentIssue false
  • English
  • Français

Understanding Law as a Democratic Institution Through US Constitutional Development

Published online by Cambridge University Press:  27 December 2018

Julie Novkov
Get access Rights & Permissions [Opens in a new window]

Abstract

This essay reviews Howard Gillman, Mark Graber, and Keith Whittington, American Constitutionalism: Volume I: Structures of Government (New York: Oxford University Press, 2012), and Howard Gillman, Mark Graber, and Keith Whittington, American Constitutionalism: Volume II: Rights and Liberties (New York: Oxford University Press, 2012). It defends developmental approaches in the study of US constitutional law. It explains how law has been studied in political science, illustrating how political development became part of the story. It outlines how American political development approaches work when applied to law, noting how studying law transforms these approaches. It notes the insights produced through the blending of American political development and constitutional law, explaining how these insights provide more leverage for understanding the role of courts as democratic institutions. The essay closes by discussing the promising directions these approaches suggest, defending their value beyond political science.

Type
Review Essay
Information
Law & Social Inquiry , Volume 40 , Issue 3 , Summer 2015 , pp. 811 - 832
Copyright
Copyright © American Bar Foundation, 2015 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

References

Brandwein, Pamela. 2011a. Law and American Political Development. Annual Review of Law and Social Science 7:187–216.Google Scholar
Brandwein, Pamela. 2011b. Rethinking the Judicial Settlement of Reconstruction. Cambridge/New York: Cambridge University Press.Google Scholar
Crowe, Justin. 2012. Building the Judiciary: Law, Courts, and the Politics of Institutional Development. Princeton, NJ: University of New Jersey Press.Google Scholar
Dahl, Robert. 1957. Decision‐Making in a Democracy: The Supreme Court as a National Policy‐Maker. Journal of Public Law 6:279–95.Google Scholar
Ewick, Patricia, and Silbey, Susan. 1998. The Common Place of Law: Stories from Everyday Life. Chicago, IL: University of Chicago Press.Google Scholar
Frymer, Paul. 2007. Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party. Princeton, NJ: Princeton University Press.Google Scholar
Garner, James Wilford. 1907. Amendment of State Constitutions. American Political Science Review 1:213–47.Google Scholar
Gillman, Howard. 1992. The Constitution Besieged: The Rise and Demise of Lochner‐Era Police Powers Jurisprudence. Durham, NC: Duke University Press.Google Scholar
Gillman, Howard. 2006. Party Politics and Constitutional Change: The Political Origins of Liberal Judicial Activism. In The Supreme Court and American Political Development, ed. Kahn, Ronald and Kersch, Kenneth. Lawrence, KS: University of Kansas Press.Google Scholar
Gillman, Howard, and Cornell, Clayton. 1999. Beyond Judicial Attitudes. In Supreme Court Decision‐Making: New Institutionalist Approaches, ed. Clayton, Cornell and Gillman, Howard. Chicago, IL: University of Chicago Press.Google Scholar
Graber, Mark. 1993. The Non‐Majoritarian Difficulty: Legislative Deference to the Judiciary. Studies in American Political Development 7:35–73.Google Scholar
Graber, Mark. 2006a. Dred Scott and the Problem of Constitutional Evil. New York: Cambridge University Press.Google Scholar
Graber, Mark. 2006b. Legal, Strategic, or Legal Strategy: Deciding to Decide During the Civil War and Reconstruction. In The Supreme Court and American Political Development, ed. Kahn, Ronald and Kersch, Kenneth, 33–66. Lawrence, KS: University of Kansas Press.Google Scholar
Graber, Mark. 2008. The Countermajoritarian Difficulty: From Courts to Congress to Constitutional Order. Annual Review of Law and Social Science 4:361–84.Google Scholar
Graber, Mark. 2013. A New Introduction to American Constitutionalism. New York: Oxford University Press.Google Scholar
Kahn, Ronald. 2006. Social Constructions, Supreme Court Reversals, and American Political Development: Lochner, Plessy, Bowers, but Not Roe . In The Supreme Court and American Political Development, ed. Kahn, Ronald and Kersch, Kennish, 67–116. Lawrence, KS: University of Kansas Press.Google Scholar
Kahn, Ronald, and Kenneth, Kersch. 2006. Introduction. In The Supreme Court and American Political Development, ed. Kahn, Ronald and Kersch, Kenneth, 1–32. Lawrence, KS: University of Kansas Press.Google Scholar
Keck, Thomas. 2004. The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism. Chicago, IL: Chicago University Press.Google Scholar
Kersch, Kenneth. 2004. Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law. New York: Cambridge University Press.Google Scholar
Lovell, George. 2003. Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy. New York: Cambridge University Press.Google Scholar
Lovell, George. 2012. This Is Not Civil Rights: Discovering Rights Talk in 1939 America. Chicago, IL: University of Chicago Press.Google Scholar
McCann, Michael. 1994. Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization. Chicago, IL: University of Chicago Press.Google Scholar
McCloskey, Robert. 1960. The American Supreme Court. Chicago, IL: University of Chicago Press.Google Scholar
Nackenoff, Carol, and Sullivan, Kathleen S. 2014. The House that Julia (and Friends) Built: Networking Chicago's Juvenile Court. In Statebuilding from the Margins: Between Reconstruction and the New Deal, ed. Nackenoff, Carol and Novkov, Julie. Philadelphia, PA: University of Pennsylvania Press.Google Scholar
Novkov, Julie. 2001. Constituting Workers, Protecting Women: Gender, Law and Labor in the Progressive Era and the New Deal Years. Ann Arbor, MI: University of Michigan Press.Google Scholar
Novkov, Julie. 2008. Bringing the States Back In: Understanding Legal Subordination and Identity Through Political Development. Polity 40:24–48.Google Scholar
Novkov, Julie. 2011. Legal Archaeology. Political Research Quarterly 64:348–61.Google Scholar
Orren, Karen, and Skowronek, Stephen. 2004. The Search for American Political Development. Cambridge/New York: Cambridge University Press.Google Scholar
Pierson, Paul. 2000. Increasing Returns, Path Dependence, and the Study of Politics. American Political Science Review 94:251–67.Google Scholar
Powell, Thomas Reed. 1907. Conclusiveness of Administrative Determinations in Federal Government. American Political Science Review 1:583–607.Google Scholar
Pritchett, C. Herman. 1961. Congress Versus the Supreme Court, 1957–1960. Minneapolis, MN: University of Minnesota Press.Google Scholar
Pritchett, C. Herman. 1963. The Roosevelt Court: A Study of Judicial Politics and Values. London: Octagon Books.Google Scholar
Randazzo, Kirk. 2008. Strategic Anticipation and the Hierarchy of Justice in the U.S. District Courts. American Politics Research 36:669–93.Google Scholar
Rose, John. 1906. Negro Suffrage: The Constitutional Point of View. American Political Science Review 1:17–43.Google Scholar
Rosenberg, Gerald. 2008. The Hollow Hope: Can Courts Bring About Social Change? 2nd ed. Chicago, IL: University of Chicago Press.Google Scholar
Segal, Jeffrey. 2008. Judicial Behavior. In The Oxford Handbook of Law and Politics, ed. Whittington, Keith, Kelemen, R. Daniel, and Caldeira, Gregory, 19–33. New York: Oxford University Press.Google Scholar
Shapiro, Martin. 1964. Law and Politics in the Supreme Court: New Approaches to Political Jurisprudence. Glencoe, IL: Free Press of Glencoe.Google Scholar
Smith, Rogers. 1988. Political Jurisprudence, the “New Institutionalism,” and the Future of Public Law. American Political Science Review 82:89–108.Google Scholar
Smith, Rogers. 1999. Civic Ideals: Conflicting Visions of Citizenship in U.S. History. New Haven, CT: Yale University Press.Google Scholar
Spillwe, Pablo, and Gely, Rafael. 2008. Strategic Judicial Decision‐Making. In The Oxford Handbook of Law and Politics, ed. Whittington, Keith, Kelemen, Daniel, and Caldeira, Gregory. New York: Oxford University Press.Google Scholar
Tushnet, Mark. 2006. The Supreme Court and the National Political Order: Collaboration and Confrontation. In The Supreme Court and American Political Development, ed. Kahn, Ronald and Kersch, Kenneth. Lawrence, KS: University of Kansas Press.Google Scholar
Whittington, Keith. 2007. The Political Origins of Judicial Supremacy. Princeton, NJ: Princeton University Press.Google Scholar
Whittington, Keith. 2011. The Supreme Court in American Politics. Reviews in American History 39:631–36.Google Scholar
Whittington, Keith, Kelemen, R. Daniel, and Caldeira, Gregory. 2008. The Study of Law and Politics. In The Oxford Handbook of Law and Politics, ed. Whittington, Keith, Kelemen, R. Daniel, and Caldeira, Gregory, 3–15. New York: Oxford University Press.Google Scholar
Zackin, Emily. 2013. Looking for Rights in All the Wrong Places: Why State Constitutions Contain America's Positive Rights. Princeton, NJ: Princeton University Press.Google Scholar

Cases Cited

Bowers v. Hardwick, 478 U.S. 186 (1986).Google Scholar
Brown v. Board of Educ. of Topeka, 347 U.S. 483 (1954).Google Scholar
Civil Rights Cases, 109 U.S. 3 (1883).Google Scholar
Ex Parte McCardle, 74 U.S. 506 (1869).Google Scholar
Lawrence v. Texas, 539 U.S. 558 (2003).Google Scholar
Marbury v. Madison, 5 U.S. 137 (1803).Google Scholar
Planned Parenthood of SE Penn. v. Casey, 505 U.S. 833 (1992).Google Scholar
Roosevelt v. Meyer, 68 U.S. 512 (1863).Google Scholar