Challenging the ruling premises underlying many of the Supreme Court's positions on fundamental issues of government authority and individual rights, Tribe shows how the Court is increasingly coming to resemble a judicial Office of Management and Budget, straining constitutional discourse through a managerial sieve to defend its constitutional rulings. Tribe explains how the Court's "calculus" systematically excludes basic concerns about the distribution of wealth and power and conceals fundamental choices about the American polity. Calling for a more candid confrontation of those choices, Tribe exposes what has gone wrong and suggests how the Court can reclaim the historic role entrusted to it by the Constitution. ISBN 0-674-16538-1: $29.95.

Our Constitution speaks in general terms of liberty and property, of the privileges and immunities of citizens, and of the equal protection of the laws--open-ended phrases that seem to invite readers to reflect in them their own visions and agendas. Yet, recognizing that the Constitution cannot be merely what its interpreters wish it to be, this volume's authors draw on literary and mathematical analogies to explore how the fundamental charter of American government should be construed today.

A New York Times Book Review Editors' Choice An innovative account of Abraham Lincoln, constitutional thinker and doer Abraham Lincoln is justly revered for his brilliance, compassion, humor, and rededication of the United States to achieving liberty and justice for all. He led the nation into a bloody civil war to uphold the system of government established by the US Constitution—a system he regarded as the “last best hope of mankind.” But how did Lincoln understand the Constitution? In this groundbreaking study, Noah Feldman argues that Lincoln deliberately and recurrently violated the United States’ founding arrangements. When he came to power, it was widely believed that the federal government could not use armed force to prevent a state from seceding. It was also assumed that basic civil liberties could be suspended in a rebellion by Congress but not by the president, and that the federal government had no authority over slavery in states where it existed. As president, Lincoln broke decisively with all these precedents, and effectively rewrote the Constitution’s place in the American system. Before the Civil War, the Constitution was best understood as a compromise pact—a rough and ready deal between states that allowed the Union to form and function. After Lincoln, the Constitution came to be seen as a sacred text—a transcendent statement of the nation’s highest ideals. The Broken Constitution is the first book to tell the story of how Lincoln broke the Constitution in order to remake it. To do so, it offers a riveting narrative of his constitutional choices and how he made them—and places Lincoln in the rich context of thinking of the time, from African American abolitionists to Lincoln’s Republican rivals and Secessionist ideologues. Includes 8 Pages of Black-and-White Illustrations

Examines constitutional change in Latin America from 1900 to 2008 and provides the first systematic explanation of the origins of constitutional designs.

At the intersection of two sweeping global trends—the rise of popular support for principles of theocratic governance and the spread of constitutionalism and judicial review—a new legal order has emerged: constitutional theocracy. It enshrines religion and its interlocutors as “a” or “the” source of legislation, and at the same time adheres to core ideals and practices of modern constitutionalism. A unique hybrid of apparently conflicting worldviews, values, and interests, constitutional theocracies thus offer an ideal setting—a “living laboratory” as it were—for studying constitutional law as a form of politics by other means. In this book, Ran Hirschl undertakes a rigorous comparative analysis of religion-and-state jurisprudence from dozens of countries worldwide to explore the evolving role of constitutional law and courts in a non-secularist world. Counterintuitively, Hirschl argues that the constitutional enshrinement of religion is a rational, prudent strategy that allows opponents of theocratic governance to talk the religious talk without walking most of what they regard as theocracy’s unappealing, costly walk. Many of the jurisdictional, enforcement, and cooptation advantages that gave religious legal regimes an edge in the pre-modern era, are now aiding the modern state and its laws in its effort to contain religion. The “constitutional” in a constitutional theocracy thus fulfills the same restricting function it carries out in a constitutional democracy: it brings theocratic governance under check and assigns to constitutional law and courts the task of a bulwark against the threat of radical religion.

Unlike many national constitutions, which contain explicit positive rights to such things as education, a living wage, and a healthful environment, the U.S. Bill of Rights appears to contain only a long list of prohibitions on government. American constitutional rights, we are often told, protect people only from an overbearing government, but give no explicit guarantees of governmental help. Looking for Rights in All the Wrong Places argues that we have fundamentally misunderstood the American rights tradition. The United States actually has a long history of enshrining positive rights in its constitutional law, but these rights have been overlooked simply because they are not in the federal Constitution. Emily Zackin shows how they instead have been included in America's state constitutions, in large part because state governments, not the federal government, have long been primarily responsible for crafting American social policy. Although state constitutions, seemingly mired in trivial detail, can look like pale imitations of their federal counterpart, they have been sites of serious debate, reflect national concerns, and enshrine choices about fundamental values. Zackin looks in depth at the history of education, labor, and environmental reform, explaining why America's activists targeted state constitutions in their struggles for government protection from the hazards of life under capitalism. Shedding much-needed light on the variety of reasons that activists pursued the creation of new state-level rights, Looking for Rights in All the Wrong Places challenges us to rethink our most basic assumptions about the American constitutional tradition.