How is Constitutional Law Made?

25 Pages Posted: 8 Oct 2010

See all articles by Robert J. Pushaw

Robert J. Pushaw

Pepperdine University - Rick J. Caruso School of Law

Tracey E. George

Vanderbilt University - Law School

Date Written: May 1, 2002


Professors George and Pushaw review Maxwell L. Stearns’ book, “Constitutional Process: A Social Choice Analysis of Supreme Court Decisionmaking.” 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.

Keywords: Maxwell Stearns, Book Review, Constitutional Law, Supreme Court, Constitution, Social Choice, Economics, Political Science

JEL Classification: K19

Suggested Citation

Pushaw, Robert J. and George, Tracey E., How is Constitutional Law Made? (May 1, 2002). Michigan Law Review, Vol. 100, 2002, Available at SSRN:

Robert J. Pushaw (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States
(310) 506-6318 (Phone)

Tracey E. George

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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