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"Congress and the Constitution is a timely and provocative book on whether, when, and how Congress thinks about the meaning of the Constitution. The excellent scholarship in this volume raises deep questions about the relationship between Congress and the courts in interpreting the Constitution and sets an agenda for further work in this important area. In so doing, the book makes a significant contribution."-Elena Kagan, Dean of Harvard Law School "The subject of this collection-the treatment of the Constitution by legislators in Congress-is both extremely interesting and important, and I do not believe that there is any other single book that is so effective in bringing together a wide range of relevant materials."-Sanford Levinson, author of Wrestling with Diversity
Neal Devins is Goodrich Professor of Law, Professor of Government, and Director of the Institute of Bill of Rights Law at the William & Mary School of Law. Among his books are Shaping Constitutional Values: The Supreme Court, Elected Government, and the Abortion Dispute; The Democratic Constitution (coauthored with Louis Fisher); and A Year at the Supreme Court (coedited with Davison Douglas and published by Duke University Press). Keith E. Whittington is Associate Professor of Politics at Princeton University. He is the author of Constitutional Construction: Divided Powers and Constitutional Meaning and Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review.
Acknowledgments vii Introduction / Neal Devins and Keith E. Whittington 1 Prolegomena for a Sampler: Extrajudicial Interpretation of the Constitution, 1789-1861 / David P. Currie 18 Congressional Attitudes toward Constitutional Interpretation / Bruce G. Peabody 39 Constitutional Analysis by Congressional Staff Agencies / Louis Fisher 64 Hearing about the Constitution in Congressional Committees / Keith E. Whittington 87 The Federal Appointments Process as Constitutional Interpretation / Michael J. Gerhardt 110 Lawyers in Congress / John C. Yoo 131 Congressional Responses to Judicial Review / J. Mitchell Pickerill 151 Court, Congress, and Civil Rights / Michael J. Klarman 173 Quasi-Constitutional Law: The Rise of Super-Statutes / William N. Eskridge Jr. and John Ferejohn 198 Congressional Fact Finding and the Scope of Judicial Review / Neal Devins 220 Institutional Design of a Thayerian Congress / Elizabeth Garrett and Adrian Vermeule 242 Evaluating Congressional Constitutional Interpretation: Some Criteria and Two Informal Case Studies / Mark Tushnet 269 Can Congress Be Trusted with the Constitution? The Effects of Incentives and Procedures / Barbara Sinclair 293 About the Contributors 313 Index 315