• The Path of Constitutional Law

Publisher:
Vandeplas Publishing
Publication date:
2007-01-01
Authors:

(Professor of Law)

(Professor of Law)
ISBN:
978-1-60042-020-6

Description:

This Executive Summary is the text of the Companion Book to the E-Treatise, “The Path of
Constitutional Law,” the first comprehensive work on American constitutional law to be published
online. The E-Treatise details the usual doctrinal areas of constitutional law with copious supporting
scholarship, but extends beyond doctrine to present the unique theme that American constitutional
law can be divided into five eras characterized by distinctively different decisionmaking styles used
by the decisive Justices (original natural law, formalist, Holmesian, instrumentalist, and modern
natural law). Differences in decisionmaking style affect the choice and weight given to the various
sources for interpretation: text; context; history; legislative, executive, and social practices; judicial
precedents; and prudential considerations. Further, the Justices have had different style related
predispositions regarding structural issues such as states’ rights, perceptions on executive versus
legislative powers, and preferences on economic versus civil and political rights. The E-Treatise
goes on to describe systematic differences in how different interpretation styles reason in terms of
deduction versus induction, use of categorical versus balancing tests, doctrine phrased as elements
to meet or factors to weigh, doctrine phrased as rules or standards, and whether any particular
decision is a question of law rather than a question of fact. The E-Treatise identifies Justices who
use the various styles, but goes beyond composition of the Court to describe political and social
events that have influenced the Court’s composition and reasoning of the Justices during each era.