Constitutional Studies

A Constitutional Studies Reading List

Prepared by Roger Pilon and Ilya Shapiro

Read This First

• “On the Origins of the Modern Libertarian Legal Movement” by Roger Pilon (16:2 Chapman Law Review 255, 2013)
  A brief history of how libertarian legal and constitutional theory emerged from progressive and conservative approaches to law and constitutional interpretation.
• “The United States Constitution: From Limited Government to Leviathan” by Roger Pilon (American Institute for Economic Research, 2005)
  Explains the theory of the Declaration of Independence, how that theory is manifest in the Constitution, and how that understanding has changed since the Founding of the U.S.

On the Principles of Constitutional Government

• “Constitutional Interpretation: Lessons from the American Experience” by Roger Pilon (Keynote Address, Századvég Foundation Conference, Budapest, Hungary, 2013)
  A more detailed discussion of the Constitution: its principles, its history, the ideas behind that history, and a few implications for European constitutionalism.
• The Classical Liberal Constitution: The Uncertain Quest for Limited Government by Richard A. Epstein (Harvard University Press, 2017)
  A comprehensive scholarly discussion of constitutional theory and history.
• Restoring the Lost Constitution: The Presumption of Liberty by Randy E. Barnett (Princeton University Press, rev. ed. 2014)
  A scholarly work arguing that the Constitution establishes a government of limited, enumerated powers and a presumption of liberty.

On the History of Limited Government in America

• The Declaration of Independence and the Constitution of the United States of America (Cato Institute edition, 1998)
  The documents that launched the American experiment in limited republican government.
• The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty by Timothy Sandefur (Cato Institute, 2014)
  How the Constitution secures the principles of the Declaration of Independence to secure liberty.
• The Federalist Papers edited by Charles R. Kesler (Signet, 2003)
  Hamilton, Madison, and Jay on the original understanding of the Constitution.
• The “Higher Law” Background of American Constitutional Law by Edward S. Corwin (Cornell University Press, 1965)
  Traces the development of natural law from antiquity to the Constitution, with special emphasis on the common law.
• Congress as Santa Claus by Charles Warren (Michie, 1932)
  A delightful discussion of the meaning, use, and abuse of the Constitution’s General Welfare Clause, written on the eve of the New Deal.
• The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt by William E. Leuchtenburg (Oxford University Press, 1995)
  Discusses the impact of Franklin Roosevelt’s Court‐​packing scheme.

On the Philosophical Foundations of Limited Government

• Two Treatises of Government by John Locke (Peter Laslett, ed., Cambridge University Press, 1960)
  This discussion of rights, property, and the social contract remains the theoretical inspiration for the American experiment.
• Anarchy, State, and Utopia by Robert Nozick (Basic Books, 1974)
  A sophisticated defense of the libertarian vision, a devastating critique of statism, and a subtle exploration of the foundations of legitimacy.
• Reason and Morality by Alan Gewirth (Univ. of Chicago Press, 1978)
  A sophisticated refutation of moral skepticism and robust development of the theory of rights

On Specific Issues of Constitutional Interpretation

• Grassroots Tyranny: The Limits of Federalism by Clint Bolick (Cato Institute, 1993)
  A readable review of state and local tyranny and a call for the kind of federalism that was meant to limit both federal and state abuses of liberty.
• “The Original Meaning of the Commerce Clause” by Randy E. Barnett (68 Univ. of Chicago Law Review 101, 2001)
  How the modern regulatory state grew out of a misreading of the Commerce Clause.
• “The Proper Scope of the Commerce Power” by Richard A. Epstein (73 Virginia Law Review 1387, 1987)
  A detailed history of the growth of the commerce power.
• “The ‘Proper’ Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause” by Gary Lawson and Patricia B. Granger (43 Duke Law Journal 267, 1993)
  A discussion of the Necessary and Proper Clause through which the federal government finds the means to do what it does.
• “Keeping Pandora’s Box Sealed: Privileges or Immunities, the Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States” by Josh Blackman and Ilya Shapiro (8 Georgetown Journal of Law & Public Policy 1, 2010)
  A discussion of the history and original meaning of the Fourteenth Amendment’s protections against state infringements of individual liberty.
• “The Once and Future Privileges or Immunities Clause” by Ilya Shapiro and Josh Blackman (26 George Mason Law Review 1, 2019)
  An update of the previous article; where are we a decade after the Supreme Court resurrected the debate over the meaning of this important provision?
• “The Constitutional Protection of Property Rights: America and Europe” by Roger Pilon (24th Economic Conference of the Progress Foundation, Zurich, Switzerland, 2007)
  A broad overview of property rights theory and case law practice.
• Takings: Private Property and the Power of Eminent Domain by Richard A. Epstein (Harvard University Press, 1985)
  A sophisticated, wide‐​ranging treatment of property rights and the modern problem of regulatory takings.
• Economic Liberties and the Constitution by Bernard H. Siegan (University of Chicago Press, 1980)
  A history of the demise of constitutional protection for economic liberties.
• Power without Responsibility: How Congress Abuses the People through Delegation by David Schoenbrod (Yale University Press, 1993)
  How Congress shirks its responsibility and violates the Constitution by delegating its legislative authority to unelected bureaucrats.