The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
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:
- The Ideological Origins of American Federalism by Alison L. LaCroix
- Ratification: The People Debate the Constitution, 1787-1788 by Pauline Maier
Antebellum period through Reconstruction:
- The Sources of Anti-Slavery Constitutionalism in America, 1760-1848 by William M. Wiecek
- Ballots For Freedom: Antislavery Politics in the United States, 1837-1860 by Richard H. Sewell
- Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War by Eric Foner
- Freedom National: The Destruction of Slavery in the United States, 1861-1865 by James Oakes
Post-Reconstruction through the Progressive Era and the New Deal:
- Illiberal Reformers: Race, Eugenics, and American Economics in the Progressive Era by Thomas Leonard
- The Evangelical Origins of the Living Constitution by John W. Compton
- The Constitution Besieged: The Rise & Demise of Lochner Era Police Powers Jurisprudence by Howard Gillman
- Rehabilitating Lochner: Defending Individual Rights against Progressive Reform by David E. Bernstein
- Rethinking the New Deal Court: The Structure of a Constitutional Revolution by Barry Cushman
Constitutional Theory:
- Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review by Keith E. Whittington
- Democracy and Political Ignorance: Why Smaller Government Is Smarter, Second Edition by Ilya Somin
- The Upside-Down Constitution by Michael S. Greve
- A Great Power of Attorney: Understanding the Fiduciary Constitution by Gary Lawson and Guy Seidman
- A Debt Against the Living: An Introduction to Originalism by Ilan Wurman
Judicial Role:
- Law and Judicial Duty by Philip Hamburger
- Overruled: The Long War for Control of the U.S. Supreme Court by Damon Root
- Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government by Clark M. Neily III
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:
