Constitutional Law and American Politics

Abstract

Public law scholars whose scholarship focuses primarily on the public conflicts between constitutional authorities fail to appreciate how constitutional law influences politics and judicial decision making in the United States. Legal norms better explain how constitutional controversies are structured than how they are resolved. Basic principles of constitutional law help secure legal agreement in the face of political disagreement. When political disagreements are resolved into legal disagreements, basic principles of constitutional law alter the terrain on which those conflicts are fought. This article examines how and why constitutional law influences both judicial and public decision making. It discusses the tendency for political scientists to first claim that constitutional law is no different to other forms of policy-making, observes how those claims are almost always qualified in practice, and points to problems with the standard qualifications. The article then considers policy and law in constitutional decision making.

Pandemic Politics: Immigration, Framing, and Covid-19

“…National newspapers are more likely to feature federal officials, who are more likely to frame the pandemic in broader terms of the threat it poses to the nation, instead of specific communities, which is of less salience to a national audience. These two reasons are also deeply intertwined, as national-level officials focus their attention on aspects of the issues that they care about and on reaching national-level audiences, just as local officials do the same with local-level issues and audiences (Graber 2009).…”

“…These are less likely to become a focus of national coverage, as these audiences have been found to be more focused on issues of national significance (Price, and Zaller 1993). Audiences for local news tend to be more interested in issues immediately impacting them, which influences both what is reported and how larger problems are framed (Graber 2009). Support for this is demonstrated by Mourão et al (2021), who found significant differences between local and national newspapers in the framing of the 2014 protests in Ferguson.…”

Law and Politics Reconsidered: A New Constitutional History of Dred Scott

“…3 3 I find the recent essay by Thomas Keck (2007) especially clear and useful. Also see Graber (forthcoming). …”

“…In doing so, and in criticizing other opinions as excessively political, scholars of the judicial process have evinced a need to understand how the judicial mode of governance relates to the legislative, executive, and administrative modes and to principles of popular governance more generally. Especially in the politically charged arena of constitutional review, scholars have sought to understand how different public actors interact to establish the meaning of the Constitution (Keck 2007; Whittington 2007; Leonard 2002; Kramer 2004; Graber forthcoming). And in some cases that means that we want to know when the judiciary has exercised (or usurped) authority plausibly claimed by some other institution or process.…”

“…For prominent exponents of behaviorism, see Segal and Spaeth (2002). Their critics include Michael Gerhardt (2003) and Mark Graber (forthcoming).…”