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Faith in the resilience of the US Constitution prompts many observers to discount evidence of a deepening crisis of governance in our day. A long history of success in navigating tough times and adapting to new circumstances instills confidence that the fundamentals of the system are sound and the institutions self-correcting. The aim of this article is to push assessments of this sort beyond the usual nod to great crises surmounted in the past and to identify institutional adaptation as a developmental problem worthy of study in its own right. To that end, we call attention to dynamics of adjustment that have played out over the long haul. Our historical-structural approach points to the “bounded resilience” of previous adaptations and to dynamics of reordering conditioned on the operation of other governance outside the Constitution’s formal written arrangements. We look to the successive overthrow of these other incongruous elements and to the serial incorporation of previously excluded groups to posit increasing stress on constitutional forms and greater reliance on principles for support of new institutional arrangements. Following these developments into the present, we find principles losing traction, now seemingly unable to foster new rules in support of agreeable governing arrangements. Our analysis generates a set of propositions about why the difficulties of our day might be different from those of the past in ways that bear directly on resilience and adaptability going forward.
This Companion provides a broad, historically informed introduction to the study of the US constitutional system. In place of the usual laundry lists of cases, doctrines, and theories, it presents a picture of the constitutional system in action, with separate sections devoted to constitutional principles, organizational structures, and the various legal and extra-legal 'actions' through which litigators and average citizens have attempted to bring about constitutional change. Finally, the volume covers a number of subjects that are rarely discussed in works aimed at a general audience, but which are critical to ensuring that constitutional rights are honored in the day-to-day lives of citizens. These include standing and causes of action, suits against officeholders, and the inner workings of the Foreign Intelligence Surveillance Court (FISC). This Companion places present-day constitutional controversies in historical context, and offers insights from a range of disciplines, including history, political science, and law.
With a view to elaborating a developmental theory of constitutionalism in the United States, this essay explores the relationship among constitutional, criminal, and civil law. It supports, with relevant case materials, a single proposition: civil litigants are afforded contested constitutional protections in federal court to the extent that the judges attribute an aspect of criminality to the underlying facts or issues in question. The essay tests this proposition in the areas of punitive damages, double jeopardy, and constitutional torts; discusses the mirroring of the stipulated pattern in legal maneuvering on constitutional issues; and briefly spells out its implications for the larger theory.
Starting from the position that officer accountability is a core value of American constitutionalism, this article reassesses Marbury v. Madison in light of the indictable acts connected to the nondelivery of Marbury's commission. First, it reads Chief Justice Marshall's opinion against the background of personal and political hostility among the principals, including between Marbury and President Jefferson. Second, it identifies avenues of further redress open to Marbury before and after the Supreme Court's refusal of the mandamus order, and it considers why they were not pursued. Finally, having identified alternative procedural traditions on which Marshall could have drawn, and reviewed decisions by state and federal judges in analogous suits against officers, it concludes that Marbury's deepest contribution was to elevate the principle of jurisdiction over the imperative of remedy in constitutional decision making.
Proceeding inductively, starting with three standard examples of major constitutional change, this short essay offers a theory of the Constitution, derived from its historical imposition on the criminal law. The theory proposes to unite constitutional provision, structure, and operations within a single framework over time.
Rogers Smith's American Political Science Review article, “Beyond Tocqueville, Myrdal, and Hartz: The Multiple Traditions of America,” poses challenging substantive and methodological questions for the study of American political development. Whether or not it intended to do so, the article has struck a chord in several programs of research. The following colloquy between Smith and me centers on Smith's reading of political culture in terms of “traditions.” In a spirit of advancing our common enterprise, I have sharpened rather than muted the differences between Smith's views and my own in order to bring them into relief in a short space.
Defining terms is a serious undertaking and one bound to stir controversy. When we decided to devote a book to this task, we were under no illusion that everyone would readily sign on to our proposal. We thought, however, that it was worth calling attention to certain conceptual problems that currently beset the study of American political development (APD). We wanted to underscore the value of tractability in claims about change over time and to demonstrate the benefits of specificity in moving this venerable research tradition forward. We regret that Professor Thomas finds our proposal objectionable, but we are even more concerned that his alternative seems to do little to address the issues that prompted our effort.
It is evident now that the political structures built in the United States over the last half-century depended for their successful functioning on a set of international conditions that no longer exist. The government programs of the 1930s to protect labor organization, promote high agricultural prices, and provide cheap credit would have caused, had the gold standard not been defunct, massive gold outflows, worsening the already severe economic contraction. The postwar offspring of these programs have multiplied under conditions of international trade and finance that in effect permitted the export of excess economic demand. For the last decade, with international circumstances less obliging, the task of whittling government down or at least controlling its growth has vexed successive administrations.