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This book asserts that the Civil War marks the end of one era of American legal history, and the beginning of another. Abraham Lincoln's famous Gettysberg Address is viewed as the beginning of a new kind of “covert” constitutional law – one with a stronger emphasis on equality in the wake of the abolition of slavery – which was legally established in the Amendments made to the U.S. Constitution between 1865 and 1870. The author asserts that the influence of this “secret constitution”, which has varied in degree from Reconstruction to the present day, is visible in the rulings of the Supreme Court on issues hinging on personal freedom, equality, and discrimination.

This book seeks to comprehend the evolving nature of the European Union following the fall of the Berlin Wall and the failure of the European Constitution. Its prime focus is the last wave of enlargement which has profoundly transformed the EU. Although there are many parallels between the European integration process and state-building processes, the Union is not anything like a Westphalian superstate. The new emerging polity resembles a kind of neo-medieval empire with a polycentric system of government, multiple and overlapping jurisdictions, striking cultural and economic heterogeneity, fuzzy borders, and divided sovereignty. The book spells out the origin, the shape, and the implications of this empire. It suggests a novel way of thinking about the European Union and the process of European integration, showing “two Europes” coming together following the end of the Cold War. It proposes a system of economic and democratic governance that meets the ever greater challenges of modernization, interdependence, and globalization. It identifies the most plausible scenario of promoting peaceful change in Europe and beyond. It argues that mainstream thinking about European integration is based on mistaken statist assumptions, and suggests more effective and legitimate ways of governing Europe than through the adoption of a European Constitution, creation of a European army, or introduction of a European social model. The book covers many fields from politics and economics to foreign affairs and security. It analyzes developments in both Eastern and Western Europe, and gives ample room for both theoretical and empirical considerations.

This book is a survey of a wide range of British opinion on the United States in the nineteenth century and highlights the views of John Stuart Mill, Walter Bagehot, Sir Henry Maine, and James Bryce, who wrote extensively on American government and society. The Victorians made a memorable contribution to the ongoing debate over the character and origins of democracy through their examination of a host of issues, including the role of the Founding Fathers, the American Constitution and its relationship to the British Constitution, slavery, the Supreme Court, the Presidency, the spoils system, and party politics. Their trenchant commentary punctures several popular American assumptions, not least the idea of exceptionalism. To Victorian commentators, the bonds of kinship, language, law, and language were of great significance; and while they did not see the United States as having a unique destiny, they rallied to Anglo-Saxon exceptionalism, which reflected their sense of a shared transatlantic history. Their commentary remains remarkably prescient, if only because the American government retains so much of its eighteenth-century character.

In this new interpretation of America's origins, the author argues that during the Constitutional debates, the Federalists were primarily concerned with building a state able to act vigorously in defense of American national interests. By transferring the powers of war making and resource extraction from states to the national government, the US Constitution created a nation‐state invested with all the important powers of Europe's eighteenth‐century “fiscal‐military states.” However, the political traditions and institutions of America, whose people had a deeply ingrained distrust of unduly concentrated authority, were incompatible with a strong centralized government based on the European pattern. To secure the adoption of the Constitution, the Federalists needed to build a very different state – they had to accommodate the formation of a powerful national government to the strong current of anti‐statism in the American political tradition. They did so by designing an administration that would be powerful in times of crisis, but would make limited demands on citizens and entailed sharp restrictions on the physical presence of the national government in society. The Constitution was the Federalists’ promise of the benefits of government without its costs – statecraft rather than strong central authority as the solution to governing. The book takes advantage of a newly published edition of the constitutional debates in recovering a neglected strand of Federalist argument, and making a case for rethinking the formation of the federal American state. It is arranged in three main parts: I. Interpreting the Debate over Ratification (four chapters); II. Military Powers (five chapters); and III. Fiscal Powers (five chapters).

The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. This book argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost. This book establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a “presumption of liberty” to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. It also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people. The book disputes the conventional wisdom, posing a powerful challenge to which others must now respond. This updated edition features an afterword with further reflections on individual popular sovereignty, originalist interpretation, judicial engagement, and the gravitational force that original meaning has exerted on the Supreme Court in several recent cases.

This book examines the “constitutional faith” that has, since 1788, been a central component of American “civil religion.” By taking seriously the parallel between wholehearted acceptance of the Constitution and religious faith, the book opens up a host of intriguing questions about what it means to be American. While some view the Constitution as the central component of an American religion that serves to unite the social order, the book maintains that its sacred role can result in conflict, fragmentation, and even war. This book takes the view that the Constitution’s value lies in the realm of the discourse it sustains: a uniquely American form of political rhetoric that allows citizens to grapple with every important public issue imaginable. A new afterword looks at the deepening of constitutional worship and attributes the current widespread frustrations with the government to the static nature of the Constitution.

This book looks at how Lincoln confronted the central issues of the Civil War era, throwing new light on the revolutionary changes he helped usher in. The book explores the issue of self-determination, illuminating Lincoln's views and comparing the South's struggle for independence to others in history (including the post-Soviet situation in Eastern Europe). One chapter offers a provocative comparison of how Lincoln and America's other outstanding war president, FDR, went beyond the limits of the Constitution in defense of the nation and freedom—as they understood them. Another chapter focuses on both the exhilarating moment of emancipation and its disappointing results. A further chapter traces Lincoln's transition from strident opponent of the Mexican War, to resolute war leader (“Destroy the rebel army,” were his terse orders), to speaking out for reconciliation (after Appomattox he exclaimed, “Enemies, never again must we repeat that word”). The next chapter compares the Civil War as a successful attempt at true national unification with the unifications of Italy, Germany, and even Switzerland (which waged a fraternal war not many years earlier). A later chapter provides an incisive look at the premonitions of Civil War that haunted the American republic since independence, including Lincoln's reluctance to accept war as a possibility. Finally, the book establishes once and for all Lincoln's brilliance as a national strategist.

What is the nature of the US Constitution? How ought it to be interpreted? Ronald Dworkin famously argued that fidelity in interpreting the Constitution as written calls for a fusion of constitutional law and moral philosophy. Sotirios A. Barber and James E. Fleming take up that call, arguing for a philosophic approach to constitutional interpretation. In doing so, they systematically criticize competing approaches — textualism, consensualism, originalism, structuralism, doctrinalism, minimalism, and pragmatism — that aim and claim to avoid a philosophic approach. They show that none can responsibly avoid philosophic reflection and choice in interpreting the Constitution. At the same time, Barber and Fleming demonstrate that a philosophic approach, properly understood, does not turn its back on traditional sources of constitutional meaning. It is in fact the most defensible approach to constitutional text and history. They emphasize that the philosophic approach is a fusion of approaches. Within such a fusion, interpreters would view text, intentions, consensus, structures, and doctrines not as alternatives to but as sites of philosophic reflection and choice about the best understanding of our constitutional commitments. Nor does the philosophic approach demand that judges and other interpreters of the Constitution become philosophers. It demands only that interpreters think self-critically and take public responsibility for the moral choices that they inevitably make in faithfully interpreting the Constitution. The book offers both a succinct overview of approaches to constitutional interpretation and a powerful argument for a philosophic approach.

In this provocative new study, Iain McLean argues that the traditional story of the British constitution does not make sense. It purports to be both positive and normative: that is, to describe both how people actually behave and how they ought to behave. In fact, it fails to do either; it is not a correct description and it has no persuasive force. The book goes on to offer a reasoned alternative. The position that still dominates the field of constitutional law is that of parliamentary sovereignty (or supremacy). According to this view, the supreme lawgiver in the United Kingdom is Parliament. Some writers in this tradition go on to insist that Parliament in turn derives its authority from the people, because the people elect Parliament. An obvious problem with this view is that Parliament, to a lawyer, comprises three houses: monarch, Lords, and Commons. The people elect only one of those three houses. This book aims to show, contrary to the prevailing view, that the United Kingdom exists by virtue of a constitutional contract between two previously independent states. Professor McLean argues that the work of the influential constitutional theorist A. V. Dicey has little to offer those who really want to understand the nature of the constitution. Instead, greater understanding can be gleaned from considering the ‘veto plays’ and ‘credible threats’ available to politicians since 1707. He suggests that the idea the people are sovereign dates back to the seventeenth century (may be fourteenth century in Scotland), but has gone underground in English constitutional writing. He goes on to show that devolution and the United Kingdom's relationship with the rest of Europe have taken the United Kingdom along a constitutionalist road since 1972, and perhaps since 1920. He concludes that no intellectually defensible case can be made for retaining an unelected house of Parliament, an unelected head of state, or an established church. This book will be an essential reading for political scientists, constitutional lawyers, historians, politicians, and the like.