Cover

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Frontmatter

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Contents

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Preface

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pp. ix-xi

In drafting the Massachusetts Constitution of 1780, the oldest constitution currently functioning, John Adams spoke to “The Frame of Government,” famously putting forward the axiom that in the commonwealth “the legislature, executive, and judicial power shall be placed in separate departments, to the end that it might be a government of laws and not of men.” Such an understanding, as James Madi-...

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Introduction

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pp. 1-13

To make a government requires no great prudence. Settle the seat of power, teach obedience: and the work is done. To give freedom is still more easy. It is not necessary to guide; it requires only to let go the rein. But to form a free government; that is, to temper together these opposite elements of liberty and restraint in one consistent ...

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1. Madison’s Complex Constitutionalism

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pp. 14-38

Constitutionalism in the American tradition is defined by the insistence upon a written constitution as fundamental law that “prescribes the limits of all delegated power.”1 This move, so much a part of early American constitutional thought, attempts to empower and limit government. But how do we make the written constitution effective? ...

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2. Congress, the Supreme Court, and the Meaning of the Civil War Amendments

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pp. 39-64

On the eve of the Civil War, Abraham Lincoln argued that states could not, as a matter of constitutional logic, secede from the Union. Yet the Constitution did not specifically address this question. And Lincoln himself insisted that much of the conflict threatening to tear the Union apart stemmed from questions that the Constitution did not explicitly answer: “no organic...

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3. The Progressive Reconstruction of American Constitutionalism

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pp. 65-93

In the spring of 1895, the Supreme Court struck down the newly passed national income tax,1 held that the Sherman Antitrust Act did not apply to a virtual monopoly of sugar manufacturing,2 and, critics insisted, used this same act to uphold an injunction against a labor strike.3 The public explosion in reaction to these cases sparked a great debate about the nature of judicial power in a democratic society. ...

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4. Discontinuities in the “Constitutional Revolution of 1937”

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pp. 94-125

After the Supreme Court struck down the National Recovery Administration (NRA) in Schechter Poultry Corporation v. the United States, Franklin Delano Roosevelt delivered an extraordinary radio address in which he called Schechter the most important decision “of my lifetime ...

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5. Unsettling the New Deal and the Return of Originalism

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pp. 126-155

Ronald Reagan consciously drew parallels between himself and Franklin Delano Roosevelt—so much so, in fact, that after his acceptance speech at the 1980 Republican Convention, the New York Times lead editorial ran under the headline: “Franklin Delano Reagan.”1 But, as William Leuchtenburg writes, “Reagan presented him-self as Rooseveltian . . . not in order to perpetuate FDR’s political tradition but for ...

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Conclusion

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pp. 156-170

The separations at the heart of the American constitutional order, while bringing to mind the tensions of the mixed polity, are wholly republican. And if the tumult in America has largely been characterized by discordant constitutional understandings, rather than violence, these tensions can still be seen as complementary to constitutional liberty and self-government. Writing...

Notes

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pp. 171-242

Index

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pp. 243-248