Congress And The Constitution

by Devins, Neal; Whittington, Keith E.

• ISBN13: 9780822336129
• ISBN10: 082233612X
• Format: Paperback
• Copyright: 2005-03-01
• Publisher: Duke Univ Pr

Summary

For more than a decade, the U.S. Supreme Court has turned a skeptical eye toward Congress. Distrustful of Congressrs"s capacity to respect constitutional boundaries, the Court has recently overturned federal legislation at a historically unprecedented rate. This intensified judicial scrutiny highlights the need for increased attention to how Congress approaches constitutional issues. In this important collection, leading scholars in law and political science examine the role of Congress in constitutional interpretation, demonstrating how to better integrate the legislative branch into understandings of constitutional practice.Several contributors offer wide-ranging accounts of the workings of Congress. They look at lawmakersrs" attitudes toward Congressrs"s role as a constitutional interpreter, the offices within Congress that help lawmakers learn about constitutional issues, Congressrs"s willingness to use its confirmation power to shape constitutional decisions by both the executive and the courts, and the frequency with which congressional committees take constitutional questions into account. Other contributors address congressional deliberation, paying particular attention to whether Congressrs"s constitutional interpretations are sound. Still others examine how Congress and the courts should respond to one anotherrs"s decisions, suggesting how the courts should evaluate Congressrs"s work and considering how lawmakers respond to Court decisions that strike down federal legislation. While some essayists are inclined to evaluate Congressrs"s constitutional interpretation positively, others argue that it could be improved and suggest institutional and procedural reforms toward that end. Whatever their conclusions, all of the essays underscore the pervasive and crucial role that Congress plays in shaping the meaning of the Constitution.Contributors. David P. Currie, Neal Devins, William N. Eskridge Jr.. John Ferejohn, Louis Fisher, Elizabeth Garrett, Michael J. Gerhardt, Michael J. Klarman, Bruce G. Peabody, J. Mitchell Pickerill, Barbara Sinclair, Mark Tushnet, Adrian Vermeule, Keith E. Whittington, John C. Yoo

Table of Contents

Acknowledgments	vii
Neal Devins and Keith E. Whittington
Introduction	1	(17)
David P. Currie
Prolegomena for a Sampler: Extrajudicial Interpretation of the Constitution, 1789-1861	18	(21)
Bruce G. Peabody
Congressional Attitudes toward Constitutional Interpretation	39	(25)
Louis Fisher
Constitutional Analysis by Congressional Staff Agencies	64	(23)
Keith E. Whittington
Hearing about the Constitution in Congressional Committees	87	(23)
Michael J. Gerhardt
The Federal Appointments Process as Constitutional Interpretation	110	(21)
John C. Yoo
Lawyers in Congress	131	(20)
J. Mitchell Pickerill
Congressional Responses to Judicial Review	151	(22)
Michael J. Klarman
Court, Congress, and Civil Rights	173	(25)
William N. Eskridge Jr. and John Ferejohn
Quasi-Constitutional Law: The Rise of Super-Statutes	198	(22)
Neal Devins
Congressional Fact Finding and the Scope of Judicial Review	220	(22)
Elizabeth Garrett and Adrian Vermeule
Institutional Design of a Thayerian Congress	242	(27)
Mark Tushnet
Evaluating Congressional Constitutional Interpretation: Some Criteria and Two Informal Case Studies	269	(24)
Barbara Sinclair
Can Congress Be Trusted with the Constitution? The Effects of Incentives and Procedures	293	(20)
About the Contributors	313	(2)
Index	315