Justice Alito on “The Constitution: An Introduction”

TheConstitution-An Introduction Michael Stokes Paulsen is the University Chair & Professor of Law at the University of St. Thomas in the Twin Cities. Through his contributions to professional publications, he has emerged as one our foremost scholars of American constitutional law. As of May 5, Professor Paulsen is also the co-author, with his son, Luke Paulsen, of The Constitution: An Introduction. The book’s Web site is online here.

United States Supreme Court Associate Justice Samuel Alito read the book in galley and wrote a brief review of it for Engage: The Journal of the Federalist Society Practice Groups Volume 16, Issue 1. The Federalist Society has posted Justice Alito’s review online this morning. Through the kind permission of The Federalist Society we are republishing Justice Alito’s review below. Justice Alito writes:

The Constitution belongs to the American people. It is based on the proposition that all legitimate political power comes from “We the People,” and two centuries after its adoption, it is respected and cherished by ordinary Americans. When controversies arise about the exercise of power by the Congress, the President, or the courts, citizens turn to the Constitution for guidance.

Many Americans interested in understanding the Constitution naturally – and quite correctly – look first to the document itself, which is relatively brief and still quite readable. But where should interested citizens look if they want to know more?

A new book by Michael Stokes Paulsen, a distinguished constitutional scholar, and his son, Luke, a recent college graduate, fits the bill. It provides a solid, intelligent, reliable, and interesting look at the origins of the Constitution, its basic structure, and its interpretation over the course of our country’s history.

Professor Paulsen and his son began this collaboration when Luke was in high school and continued throughout his college years at Princeton. It is easy to imagine this process as a conversation between a father, who has been immersed in the study of the Constitution for his entire adult life, and a bright son, who brings a new perspective and challenges the father to explain and defend.

The book begins by retelling the extraordinary events that led to the drafting and ratification of the Constitution and the quick addition of the Bill of Rights. Then, in well under 100 pages, it elucidates the constitutional structure that the Constitution creates. The authors evidence a great respect for the work of the Founders, and they have harsh words for those who treat the Constitution like a Rohrshach blot. But they are also painfully honest about the flaws in the original design – and in particular, the Founders’ accommodation of slavery. The chapter devoted to this subject is one of the most interesting and will be instructive even for those who know a fair amount about the Constitution. (For example, how many lawyers know that, were it not for the infamous three-fifths provision, which counted a slave as three-fifths of a person for purposes of congressional apportionment, John Adams, not Thomas Jefferson, would have won the pivotal presidential election of 1800?)

After analyzing the constitutional text, the Paulsens provide a lively tour through 200 plus years of constitutional controversy and litigation. Famous and less well-known cases are recounted in accessible terms. Understanding some of the most important cases in our country’s history, including Marbury v. Madison and the Dred Scott case, requires at least some comprehension of what most non-lawyers are likely to regard as arcane and boring procedural questions. But the Paulsens explain these preliminary matters without seeming to break a sweat. The Paulsens also enliven the story of our country’s constitutional experience by providing brief biographies of individuals who made that history.

The Paulsens’ book fairly presents both sides on major interpretive issues, but they do not hide their own point of view. They favor a form of originalism and judicial restraint. They are decidedly Hamiltonian in their view of national and presidential power, but at the same time they support a robust conception of the individual rights set out in the Bill of Rights and post-Civil War Amendments. Substantive due process, which they trace back to Dred Scott, however, is another matter.

An appreciable percentage of those who read this impressive book are likely to disagree with the authors on at least some major points, and that is one of the book’s virtues. It invites readers to become personally engaged in the discussion of the Constitution that began in the fall of 1787 when the citizens of the states debated ratification, and this process continues today. The Paulsens’ book does not tell Americans what to think, but it provides invaluable help as they think for themselves.

Published with the kind permission of The Federalist Society.
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