Federal judges, legal scholars, pundits, and reporters frequently describe the Supreme Court as the final word on the meaning of the Constitution. The historical record presents an entirely different picture. A close and revealing reading of that record, from 1789 to the present day, Reconsidering Judicial Finality reminds us of the “unalterable fact,” as Chief Justice Rehnquist once remarked, “that our judicial system, like the human beings who administer it, is fallible.” And a Court inevitably prone to miscalculation and error, as this book clearly demonstrates, cannot have the incontrovertible last word on constitutional questions. In this deeply researched, sharply reasoned work of legal myth-busting, constitutional scholar Louis Fisher explains how constitutional disputes are settled by all three branches of government, and by the general public, with the Supreme Court often playing a secondary role. The Court’s decisions have, of course, been challenged and reversed in numerous cases—involving slavery, civil rights, child labor legislation, Japanese internment during World War II, abortion, and religious liberty. What Fisher shows us on a case-by-case basis is how the elected branches, scholars, and American public regularly press policies contrary to Court rulings—and regularly prevail, although the process might sometimes take decades. From the common misreading of Marbury v. Madison, to the mistaken understanding of the Supreme Court as the trusted guardian of individual rights, to the questionable assumptions of the Court’s decision in Citizens United, Fisher’s work charts the distance and the difference between the Court as the ultimate arbiter in constitutional matters and the judgment of history. The verdict of Reconsidering Judicial Finality is clear: to treat the Supreme Court’s nine justices as democracy’s last hope or as dangerous activists undermining democracy is to vest them with undue significance. The Constitution belongs to all three branches of government—and, finally, to the American people.

Federal judges, legal scholars, pundits, and reporters frequently describe the Supreme Court as the final word on the meaning of the Constitution. The historical record presents an entirely different picture. A close and revealing reading of that record, from 1789 to the present day, Reconsidering Judicial Finality reminds us of the “unalterable fact,” as Chief Justice Rehnquist once remarked, “that our judicial system, like the human beings who administer it, is fallible.” And a Court inevitably prone to miscalculation and error, as this book clearly demonstrates, cannot have the incontrovertible last word on constitutional questions. In this deeply researched, sharply reasoned work of legal myth-busting, constitutional scholar Louis Fisher explains how constitutional disputes are settled by all three branches of government, and by the general public, with the Supreme Court often playing a secondary role. The Court’s decisions have, of course, been challenged and reversed in numerous cases—involving slavery, civil rights, child labor legislation, Japanese internment during World War II, abortion, and religious liberty. What Fisher shows us on a case-by-case basis is how the elected branches, scholars, and American public regularly press policies contrary to Court rulings—and regularly prevail, although the process might sometimes take decades. From the common misreading of Marbury v. Madison, to the mistaken understanding of the Supreme Court as the trusted guardian of individual rights, to the questionable assumptions of the Court’s decision in Citizens United, Fisher’s work charts the distance and the difference between the Court as the ultimate arbiter in constitutional matters and the judgment of history. The verdict of Reconsidering Judicial Finality is clear: to treat the Supreme Court’s nine justices as democracy’s last hope or as dangerous activists undermining democracy is to vest them with undue significance. The Constitution belongs to all three branches of government—and, finally, to the American people.

When asked which branch of government protects citizens’ rights, we tend to think of the Supreme Court—stepping in to defend gay rights, for example, in the recent same-sex marriage case. But as constitutional scholar Louis Fisher reveals in his new book, this would be a mistake—and not just because a decision like the gay marriage ruling can be decided by the opinion of a single justice. Rather, we tend to judge the executive and judicial branches idealistically, while taking a more realistic view of the legislative, with its necessarily messier and more transparent workings. In Congress, Fisher highlights these biases as he measures the record of the three branches in protecting individual rights—and finds that Congress, far more than the president or the Supreme Court, has defended the rights of blacks, women, children, Native Americans, and religious liberty. After reviewing the constitutional principles that apply to all three branches of government, Fisher conducts us through a history of struggles over individual rights, showing how the court has frequently failed at many critical junctures where Congress has acted to protect rights. He identifies changes in the balance of power over time—a post–World War II transformation that has undermined the system of checks and balances the Framers designed to protect individuals in their aspiration for self-government. Without a strong, independent Congress, this book reminds us, our system would operate with two elected officers in the executive branch and none in the judiciary, a form of government best described as elitist—and one no one would deem democratic. In light of the history that unfolds here—and in view of a Congress widely decried as dysfunctional—Fisher proposes reforms that would strengthen not only the legislative branch’s role in protecting individual rights under the Constitution, but also its standing in the democracy it serves.

This book makes the radical claim that rather than interpreting the Constitution from on high, the Court should be reflecting popular will--or the wishes of the people themselves.

Who should decide what is constitutional? The Supreme Court, of course, both liberal and conservative voices say—but in a bracing critique of the “judicial engagement” that is ascendant on the legal right, Greg Weiner makes a cogent case to the contrary. His book, The Political Constitution, is an eloquent political argument for the restraint of judicial authority and the return of the proper portion of constitutional authority to the people and their elected representatives. What Weiner calls for, in short, is a reconstitution of the political commons upon which a republic stands. At the root of the word “republic” is what Romans called the res publica, or the public thing. And it is precisely this—the sense of a political community engaging in decisions about common things as a coherent whole—that Weiner fears is lost when all constitutional authority is ceded to the judiciary. His book calls instead for a form of republican constitutionalism that rests on an understanding that arguments about constitutional meaning are, ultimately, political arguments. What this requires is an enlargement of the res publica, the space allocated to political conversation and a shared pursuit of common things. Tracing the political and judicial history through which this critical political space has been impoverished, The Political Constitution seeks to recover the sense of political community on which the health of the republic, and the true working meaning of the Constitution, depends.

Political factors influence judicial decisions. Arguments and input from lawyers and interest groups, the ebb and flow of public opinion, and especially the ideological and behavioral inclinations of the justices all combine to influence the development of constitutional doctrine. The Eleventh Edition of Constitutional Law for a Changing America: Institutional Powers and Constraints draws on political science as well as legal studies to analyze and excerpt landmark cases, including key opinions handed down through 2021. This book is ideal for Constitutional Law courses in the two-semester sequence that covers powers and constraints. For courses that cover both rights and liberties and the separation of powers in one semester, see

This book is a collection of comprehensive background essays coupled with carefully edited Supreme Court case excerpts designed to explore constitutional law and the role of the Supreme Court in its development and interpretation. Well-grounded in both theory and politics, the book endeavors to heighten students’ understanding of this critical part of the American political system. New to the 18th Edition An account of the Trump impeachments and a full discussion of the recent Supreme Court transitions including recent Supreme Court transitions including the fraught Kavanaugh hearings, the death of Ruth Bader Ginsberg, and the nomination process surrounding Amy Coney Barrett. Fourteen new cases carefully edited and excerpted, including Chifalo v. Washington (2020) on the Electoral College, Masterpiece Cakeshop (2018) on gay rights, and three Trump cases as well. Thirty-one new cases discussed in chapter essays in addition.

Legislating under the Charter explores how governments and Parliament justify limitations on rights when advancing laws that raise rights concerns or when responding to judicial decisions under the Canadian Charter of Rights and Freedoms. Through an analysis of legislation concerning criminal justice policy, the approval of new safe consumption sites, sex work, and medical assistance in dying, the book provides a detailed analysis of the extent and nature of parliamentary deliberation about rights, the extent to which government initiatives are properly scrutinized, and the broader institutional relationships under the Charter. The authors draw from a host of qualitative data, including research interviews and examination of judicial decisions, various bills under study, Hansard debates from the floor of the House of Commons, committee and Senate scrutiny of legislation, bureaucratic advice and Charter statements by the department of justice, and news media coverage. The book offers a set of concrete reform proposals to improve the transparency and accountability of executive and bureaucratic vetting processes, and to strengthen the role of Parliament in upholding constitutional values and holding the government to account. In doing so, Legislating under the Charter contributes to the broader comparative scholarship on models of judicial review, morality policy, policy change, and constitutionalism.

This collection examines case-based reasoning in constitutional adjudication; that is, how courts decide on constitutional cases by referring to their own prior case law and the case law of other national, foreign, and international courts. Argumentation based on judicial authority is now fundamental to the resolution of constitutional disputes. At the same time, it is the most common form of reasoning used by courts. This volume shows not only the strengths and weaknesses of such argumentation, but also its serious methodological shortcomings. The book is comparative in nature, with individual chapters examining similar problems that different courts have resolved in different ways. The research covers three types of courts; namely the civil law constitutional courts of Germany, Italy, Poland, Lithuania, and Hungary; the common law supreme courts of the United States, Canada, and Australia; and the European international courts represented by the European Court of Human Rights and the Court of Justice of the European Union. The authors are distinguished scholars from various countries who specialise in constitutional justice issues. This book will be of interest to legal theorists and practitioners, and will be especially insightful for constitutional court judges. The Open Access version of this book, available at www.taylorfrancis.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license.

The Hollow Core of Constitutional Theory is the first major defense of the central role of the Framers' intentions in constitutional interpretation to appear in years. This book starts with a reminder that, for virtually all of Western legal history, when judges interpreted legal texts, their goal was to identify the lawmaker's will. However, for the past fifty years, constitutional theory has increasingly shifted its focus away from the Framers. Contemporary constitutional theorists, who often disagree with each other about virtually everything else, have come to share the view that the Framers' understandings are unknowable and irrelevant. This book shows why constitutional interpretation needs to return to its historical core inquiry, which is a search for the Framers' intentions. Doing so is practically feasible, theoretically defensible, and equally important not only for discovering the original meaning, but also for deciding how to apply the Constitution today.