America's Constitution and the Yale School of Constitutional Interpretation

Article excerpt

America's Constitution: A Biography (1) tries to explain how and why the supreme law of our land was enacted at the Founding and then amended over the ensuing centuries. The biography's narrative tracks the textual flow of the Constitution itself; article by article and amendment by amendment, I take my readers on an interpretive journey through the document. While I give some constitutional patches of text far more attention than others, I try to say at least something in passing--ideally, something fresh and important--about every notable constitutional provision.

The book targets a wide audience. At one end of the spectrum I aim to make the Constitution's letter and spirit understandable to members of the general public--say, high school seniors taking Advanced Placement History or Government. At the other end, I have tried to write something that even gray-aired scholars will find significant and surprising. (To put the point autobiographically, I have filled my account with facts, ideas, interpretations, and insights that I stumbled upon only in the course of researching and writing this book after nearly two decades of teaching constitutional law at Yale.)

I shall not today attempt a comprehensive summary of the book's twists and turns. (2) Instead, I shall try to place America's Constitution against the backdrop of several noteworthy constitutional law books authored by my predecessors and colleagues on the Yale Law School faculty over the last half-century. Together, these books define the core curriculum of what might be called the modern Yale School of Constitutional Interpretation. (3)

I. BICKEL'S LEAST DANGEROUS BRANCH

The publication of Alexander Bickel's The Least Dangerous Branch in 1962 marked a milestone in the history of American constitutional scholarship. (4) Prior to World War II, serious books on the Constitution came mainly from high-powered judges, lawyers, political scientists, and historians--consider, for example, Joseph Story, Alexis de Tocqueville, Thomas Cooley, Woodrow Wilson, Charles Beard, Andrew C. McLaughlin, Charles Warren, and Edward S. Corwin. For much of the early twentieth century, common law courses such as contracts and property dominated law school curricula, and few law professors penned big books on broad questions of constitutional law. When one such ambitious book did appear in the 1950s--William Crosskey's epic two-volume saga, Politics and the Constitution in the History of the United States (5)--it was met with savage criticism from much of the established legal professoriate. (6)

A new era dawned when Yale's Charles Black (about whom I shall have much more to say presently) published a marvelous book, The People and the Court, (7) in 1960 and his colleague Bickel responded with his own provocative book two years later. Since the publication of these two classics, the prominence of constitutional law within top law schools has risen considerably, as has the proportion of cutting-edge constitutional scholarship produced by law professors.

Several of the largest questions that Black and Bickel posed remain central to constitutional discourse today. How can judicial review by unelected judges holding lifetime appointments be reconciled with democratic theory and with the commitment to popular self-government evident throughout America's Constitution? What sorts of questions are off-limits to judges? Are such limits to be drawn and enforced solely by the legislative and executive branches, or should judges themselves also develop regimens of self-restraint?

While America's Constitution: A Biography does touch on these questions, I have tried to shift and widen the focus so as to give readers a less court-centered and more panoramic account of constitutional law. Bickel took for granted the basic democratic thrust of the nonjudicial branches, but in so doing, he glided by many constitutional questions that deserve more careful study. …