How is Constitutional Law Made?

Authors

Tracey E. George
Robert J. Pushaw, Jr.

Document Type

Article

Publication Title

Michigan Law Review

Publication Date

2002

ISSN

0026-2234

Page Number

1265

Keywords

constitutional law, Maxwell Stearns, economics, social choice, Supreme Court, political science

Disciplines

Constitutional Law | Economics | Law

Abstract

Professors George and Pushaw review Maxwell L. Stearns’ book, “Constitutional Process: A Social Choice Analysis of Supreme Court Decision-making.” In his book, Stearns demonstrates that the U.S. Supreme Court fashions constitutional law through process-based rules of decision such as outcome voting, stare decisis, and justiciability. Employing “social choice” economic theory, Professor Stearns argues that the Court strives to formulate rules that promote rationality and fairness. Perhaps the greatest strength of Stearns’ book is that he presents a grand unified theory of the Court’s rules of constitutional process and the resulting development of doctrine. This strength can also be a weakness, however, because he tends to read precedent and the historical evidence to fit his thesis, even when other explanations may be more persuasive. In this review, Professors George and Pushaw explore two such alternatives, grounded in political science and constitutional theory, and argue that these disciplines are at least as effective as economics in illuminating constitutional lawmaking.

Recommended Citation

Tracey E. George and Robert J. Pushaw, Jr., How is Constitutional Law Made?, 100 Michigan Law Review. 1265 (2002)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/861