Chapter 3 Further Reading

The Constitution has produced an extraordinary scholarly literature. The list below is a curated path into it. The selections are deliberately mixed in ideological orientation: a constitutional reading list that is all from one camp will leave you reading caricatures of the others. Read across the camps. Steel-man each.

Founding history and the document itself

Akhil Reed Amar, America's Constitution: A Biography (Random House, 2005). The single best book if you want a clause-by-clause biography of the Constitution. Amar walks through every article, every clause, every amendment, with the historical context and the doctrinal evolution. Amar's politics are, broadly, center-left, but the book is careful and broadly fair-minded. Pair it with Amar's later The Words That Made Us (2021), which is more focused on the founding and ratification debates.

Pauline Maier, Ratification: The People Debate the Constitution, 1787–1788 (Simon & Schuster, 2010). The definitive history of the ratification debates. Maier is unsentimental and meticulous. The Constitution became operative because nine states ratified, and the politics of those nine ratifications — the conventions, the pamphlet wars, the personalities — are the central drama Maier reconstructs. Read this if you want to feel how contingent ratification was.

Gordon S. Wood, The Creation of the American Republic, 1776–1787 (UNC Press, 1969; revised 1998). The classic intellectual history of the founding period. Wood's argument that the founders made a self-conscious break with the classical-republican tradition has shaped the field for fifty years. Dense but rewarding.

Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (Knopf, 1996). Pulitzer Prize-winning study that takes seriously what "original meaning" actually was, and how multiple meanings co-existed. A useful corrective to anyone who thinks "originalism" is methodologically simple.

Slavery and the Constitution

David Waldstreicher, Slavery's Constitution: From Revolution to Ratification (Hill and Wang, 2009). A direct and unsentimental account of how slavery shaped the Constitution. Pairs well with Don Fehrenbacher's The Slaveholding Republic (2001), a longer treatment.

Sean Wilentz, No Property in Man: Slavery and Antislavery at the Nation's Founding (Harvard, 2018). A counterweight that emphasizes the antislavery elements in the founding. Wilentz argues, contrary to some currents in current scholarship, that the founders deliberately refused to constitutionalize slavery as a property relation, leaving room for later abolition. The Wilentz/Waldstreicher debate is a useful back-and-forth.

The Reconstruction Amendments

Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution (Norton, 2019). Foner is the dean of Reconstruction historians, and this short volume is his definitive statement on the constitutional revolution of 1865–1870. Essential reading.

Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (Yale, 1998). Argues that the original Bill of Rights and the 14th Amendment together produced an "incorporation" doctrine deeper than the standard account. Important for understanding why the 14th Amendment did so much work.

Originalism and originalists

Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West, 2012). Scalia's most systematic statement of textualist methodology, applied to statutes and the Constitution. Even readers who reject textualism should engage with Scalia's strongest arguments here.

Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton, 1997). Scalia's earlier essay on textualism, with responses from Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin. The format — Scalia's argument, three rebuttals, Scalia's reply — is a model of constitutional debate.

Lawrence B. Solum, "Originalism and Constitutional Construction" (88 Fordham L. Rev. 453, 2013), and other Solum essays at lawrenceblog.com. Solum is the most sophisticated contemporary academic originalist. His distinction between "interpretation" (recovering original public meaning) and "construction" (applying meaning to new cases) is essential to understanding modern originalist methodology.

Steven G. Calabresi (ed.), Originalism: A Quarter-Century of Debate (Regnery, 2007). A useful collection of speeches and essays by leading originalists, with critical responses.

Living constitutionalism and its variants

David A. Strauss, The Living Constitution (Oxford, 2010). The clearest articulation of the common-law-constitutional position. Strauss argues, persuasively, that the operative American constitution is the body of judicial doctrine, and that this is not a defect but the system's essential feature. Pair with Strauss's Common Law Constitutional Interpretation (63 U. Chi. L. Rev. 877, 1996).

Jack M. Balkin, Living Originalism (Harvard, 2011). Balkin argues — provocatively but seriously — that originalism, properly understood, requires living constitutionalism. The framers wrote in broad principles intending broad application; fidelity to them requires reading those principles into changing circumstances. Important book, regardless of where you land.

Justice William J. Brennan, "The Constitution of the United States: Contemporary Ratification" (1985 Georgetown speech, widely reprinted). The most influential statement of judicial living constitutionalism. Brennan's central argument: the Constitution is a "sublime oration on the dignity of man" whose meaning is given to each generation to discover.

Bruce Ackerman, We the People: Foundations (Harvard, 1991), and Transformations (Harvard, 1998). Ackerman's "constitutional moments" theory — that constitutional change happens through extra-Article-V processes during periods of high public engagement (the founding, Reconstruction, the New Deal) — is a significant alternative to standard amendment-focused thinking.

Constitutional reform and critique

Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (Oxford, 2006). The most prominent contemporary case for serious constitutional reform. Levinson criticizes the Senate's apportionment, the Electoral College, the difficulty of amendment, and the supermajority requirements that, in his view, produce dysfunction. Whether you agree with him or not, the book is the place to engage with the reform argument seriously.

Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford, 2004). Argues that judicial supremacy in constitutional interpretation is a recent innovation and that historical constitutional practice was much more politically participatory.

Jamal Greene, How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart (Houghton Mifflin Harcourt, 2021). A diagnosis of how American constitutional rights culture became more absolutist and more polarized than rights cultures elsewhere, and what could be done about it.

Reference and primary sources

The annotated Constitution available at constitution.congress.gov. The Library of Congress maintains an authoritative annotated Constitution that summarizes Supreme Court doctrine on every clause. This is the indispensable reference for anyone working with the constitutional text.

The National Constitution Center's Interactive Constitution (constitutioncenter.org/interactive-constitution). For each clause, two scholars of opposing perspectives have written commentaries. A model of balanced constitutional pedagogy and a useful starting point for reading any clause.

The Federalist Papers. Available free online (Library of Congress, Yale Avalon Project). Hamilton, Madison, and Jay's essays defending ratification remain the single most important primary source on what the framers thought they were doing. Federalist 10 (factions), 51 (separation of powers), 70 (executive energy), and 78 (judiciary) are particularly important.

The Anti-Federalist Papers. The opposing view, less unified but no less important. Brutus and the Federal Farmer essays are the most influential.