Books on the Constitution for Libertarians and Conservatives

A recommended reading list for law students (and others) who are interested in the Constitution, constitutional history, and constitutional law.

|The Volokh Conspiracy |

I was recently asked on Twitter for a list of books–other than my own (see below)–on the Constitution "from a libertarian perspective." Because I don't think that's a good criteria for selecting books, I instead recommended books on the Constitution that–regardless of their authors' perspectives–should be of special interest to conservatives and libertarians. I thought I would post an expanded version of my list here (with apologies to the many I have neglected to mention). In compiling it, I have generally avoided books on particular clauses (e.g. First Amendment, Second Amendment, Takings Clause) or cases (e.g. Marbury, Brown, NFIB)–though I include one on Lochner–or noteworthy constitutional figures (e.g. Madison, Hamilton, Marshall). Instead, I have emphasized books about our constitutional history, mainly since the Founding, that have influenced my own thinking in some way, and a few about contemporary theory or debates about judicial role. Here it is:

Founding period and its antecedents:

Antebellum period through Reconstruction:

Post-Reconstruction through the Progressive Era and the New Deal:

Constitutional Theory:

Judicial Role:

Of course, there are numerous other excellent and influential books I might have mentioned by such well-known authors as John Hart Ely, Ronald Dworkin, Akhil Amar, James Ely, Bruce Ackerman, Richard Epstein, Barry Friedman, Richard Fallon, David Strauss, Jack Balkin, Sandy Levinson, James Fleming, Tom West and many more. But the books listed above are those that law students might not hear about from their professors or otherwise come across on their own.

UPDATE: Since this list is likely to circulate, it occurs to me that I probably should include my own works as well:

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  1. Why pair “libertarians and conservatives” int that headline (other than lack of sound publication standards and practices)?

    This headline is the shoddy advocacy of a faux libertarian, too embarrassed or cowardly to acknowledge that he is a right-winger, smearing libertarianism in the process.

    Looking at you, Conspirators, and at the low-grade partisanship showing through that academic veneer.

    A genuine libertarian rejects conservative and liberal thought and positions in roughly equal measure.

    A faux libertarian — a conservative masquerading in unconvincing libertarian drag — claims that a genuine libertarian can support the drug war, government micromanagement of abortion clinics, prayer in public schools, military belligerence, a gay marriage ban, creationism in public classrooms, economic protectionism, contraception bans, torture, gambling bans, massive military spending, government surveillance, endless detention without trial, government secrecy, bigoted and restrictive immigration policies and practices, tariffs, and the rest of the Republican Party platform.

    1. You’re missing the point of OP. It’s about constitutional theory, not substantive policies. When it comes to constitutional theory, there’s a clear divide between libertarians/conservatives and “progressives”/statists/leftists.
      Constitution allows federal gov’t to engage in limited number of activities. Self-described “progressives” (i.e. leftists) go around saying that Constitution is flexible, that its meaning is not set in stone (“living Constitution”). Once enough people accept this view, they can “bend” Constitution to allow gov’t to do pretty much anything. That will be the end of “limited gov’t of enumerated powers,” the end of Founders’ vision of America.
      Constitution is just a piece of paper. It will become a dead letter, much like Soviet constitution*, if statist lawmakers pass unconstitutional laws, which are then unconstitutionally enforced by statist federal/state/local officials, and dishonest judges uphold the whole unconstitutional exercise, explaining their “permissive reading” of the gov’t’s enumerated powers by “a general reticence to invalidate the acts of the Nation’s elected leaders,” since, after all, “[i]t is not our job to protect the people from the consequences of their political choices.”
      * Justice Scalia used to regularly make this point, see here.

    2. We know for a fact that progressives and liberals do not give one whit about the constitution.

  2. I noticed all of the links are to Amazon. Does VC participate in the Amazon Services LLC Associates Program, or derive any other benefit from linking to Amazon? Why link to Amazon (an extremely successful, if self-interested corporation, not necessarily serving conservative or libertarian interests), rather than the publisher?

    1. Those look like affiliate links, and it’s not disclosed. That’s a big no-no. The associate tag appears to be reason’s not the author’s.

  3. “Why link to Amazon (an extremely successful, if self-interested corporation, not necessarily serving conservative or libertarian interests), rather than the publisher?”

    1. the publishers in most cases are “self-interested corporations, not necessarily serving conservative or libertarian interests” The ones that aren’t self-interested corporations are mostly university presses which again no more serve conservative or libertarian interests than Amason does.

    2. The individual publishers may or may not offer direct sales, and even if they do, that doesn’t mean that these specific books are available for direct sale from the publishers.

    1. Publishers don’t dominate the consumer market like Amazon does:

      On the print front, Amazon is indeed very close to half the US market: Our own Bookstat-derived total of 312 million print units sold by Amazon in 2017 is 45.5% of Bookscan’s total reported 2017 print sales of 687 million, which means Amazon sales now comprise the majority of Bookscan’s “Club & Retail” share. …..[T]hat puts Amazon’s US print share is at least 40%. And that’s ignoring another 10-15 million unreported Amazon print sales a year from CreateSpace titles that aren’t trackable through Ingram “expanded distribution.”

      ….. US print sales (are) still growing rapidly. In the prior year, 2016, the 280 million Amazon online print sales Bookstat reports were only 41.7% of 674 million total units and in 2015 Bookstall’s 246 million print unit total for Amazon was only 37.7% of Bookscan’s 653 million reported units. So Amazon’s online print sales continue to grow by a double digit percentage each year.
      …..
      In other words, the overall 2-3% annual growth in print sales reported by the industry for the past several years is solely due to Amazon’s fast-growing online print sales, while all other channels shrunk.

      For ebooks, your estimate of 90% is only slightly high; Amazon’s share of overall US ebook units is about 83%. …..

      1. “Publishers don’t dominate the consumer market like Amazon does:”

        Who cares? The convenience of one stop shopping has value.

    2. Why link to Amazon?

      1. Help readers find the books.
      2. Take a cut of the profits as a referral fee.

  4. These links would be better offered to Progs and Socialists. Libertarians seem to be pretty well versed in the Constitution as far as the tribes go, and the Conservatives seem somewhat versed in the Constitution. It’s the other two groups that don’t seem to have any understanding or regard for it and would be well served to get educated.

  5. I wonder about the comment that these are books that law students might not hear about from their professors or otherwise come across on their own. Five of the first six — I don’t know the LaCroix book — are bog-standard historical works about their periods that anyone taking the relevant undergraduate history course might well have read — as I did — and probably wouldn’t know about otherwise. And why would it be the business of law professors — except, perhaps, those teaching American legal history — to recommend general historical works of that sort? The post-reconstruction-era books might be very interesting, but, in my experience, and that of most lawyers I know, law professors rarely recommend law-related books to the students who mainly seek to instructed in the trade, except, perhaps, in seminars.

  6. THANKS!

  7. If the idea is to tarbrush libertarians by association, the Republican party platform did that in 2016. Call instead for books for Libertarians and chainsaw-murderers, or libertarians and People’s Temple congregants–at least show some originality!

  8. Still looking for the book that explains how the Constitution applies to people who never signed it….

    1. I didn’t vote on any of the laws, nor vote on any of the federal regulations. Why do they apply to me?

  9. I would include Pete Hendrickson’s brilliant treatise on the Constitutional meaning of the taxing clauses in article one, the Sixteenth Amendment that confirmed and protected those taxing clauses, as well as Supreme Court cases. If Mr Barnett had read that book, he would not have lost NFIB.vs Sebellius see http://www.losthorizons.com

  10. “Rights of Our Fathers” Chester J. Antineau
    “The Higher Law Background of American Constitutional Law” Edward S. Corwin

  11. Since the list is for libertarians as well as conservatives, shouldn’t you include Lysander Spooner, _The Constitution of No Authority_? It offers a simple argument which people who believe the Constitution has some moral force have to deal with.

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