For more than a quarter century, Louis Fisher has been arguing against court-centered approaches to constitutional studies by showing how constitutional law is “shaped both by judicial and nonjudicial forces,” including the actions of “the elected branches, the states, interest groups, and the general public” (p. vii). Neal Devins joined this effort when he and Fisher coauthored Political Dynamics of Constitutional Law (1992, 1996, 2001). With this latest iteration, their basic storyline is still the same, although they have added new case studies and a new normative argument about why constitution law “should work that way” (p. vii).

After a very brief introduction that sketches out some of the justifications for incorporating extrajudicial elements into constitutional analysis, the authors address what they consider to be some of the more persistent misconceptions about our constitutional system. Their first target is the belief in “judicial supremacy,” or the preoccupation among specialists and mass publics to think of the Constitution in terms of Supreme Court case law. To rebut this view, the authors repeat claims that the Framers did not contemplate judicial review of coordinate branches and that Marbury v. Madison established a relatively narrow and tame precedent for judicial authority. More generally, they share many statements from power holders in the early Republic who advocated the “coordinate construction” position—namely, that no one branch had any greater authority than any other to interpret the Constitution—and then review a variety of methods and practices that often prevent courts from having the final say. They elaborate the point with an additional chapter that provides examples of how “Congress, the White House, government agencies, the states, the general public, and interest groups” participate in the process of interpreting the Constitution (p. 51).

This is followed by a series of chapters covering federalism, separation of powers, the war power, privacy, race, speech, and religion. After a general introduction to the issue, the authors compile a series of fact-thick case studies designed to demonstrate that many disputes over these questions are resolved outside the courts, and that constitutional law in these areas is a by-product of a dialogue with the preferences of the rest of the political system (especially powerful interest groups and the evolving agendas of other national power holders). Much of this material will be very familiar to those who have read the authors' earlier work, although there are some useful expansions and updates.

The concluding chapter, entitled “The Ongoing Dialogue,” is a revised and updated version of an article Devins and Fisher published in the late 1990s (“Judicial Exclusivity and Political Instability,” Virginia Law Review 84 [1998]: 83–106). In it they elaborate on why judicial supremacy is both empirically inaccurate and normatively unattractive. Among other things, they argue that the Constitution privileges checks and balances over the supremacy of a single authoritative interpreter and that the “trial and error” of constitutional dialogue is a more effective way of ensuring political stability then a false and rigid certainty imposed by autonomous judges: “By agreeing to an open exchange among the branches, all three institutions are able to expose weaknesses, hold excesses in check, and gradually forge a consensus on constitutional values. By participating in this process, the public has an opportunity to add legitimacy, vitality, and meaning to what might otherwise be an alien and short-lived document” (p. 239).

Like many of the authors' previous collaborations, this book is well suited for use as a supplementary undergraduate text. The basic arguments about constitutional dialogue are laid out without too much fuss, and the case studies are packed with useful information. For those who still assume that our Constitution only lives in Supreme Court opinions, the book will be an eye-opening corrective.

As it turns out, it is getting increasingly difficult to find constitutional scholars who need to learn this lesson. There is now a fairly robust scholarship that focuses on non-Court-centered constitutional studies and on the role that courts play within the broader dynamic of constitutional politics. Scholars have moved past the metaphor of dialogue to talk more systematically about the particular ways in which courts might relate to the broader political regime, as well as the ways in which dominant governing coalitions might use courts to promote their agendas.

Unfortunately, in this book, these trend-setting authors do not address the latest trends in constitutional scholarship. References to the relevant literature are (at best) pro forma and incomplete. Important contributors to these debates—including Jack Balkin, Susan Burgess, Barry Friedman, Mark Graber, Sandy Levinson, Terri Peretti, and Keith Whittington—receive either no attention or (at best) just a passing mention. For example, in his book Constitutional Construction (2001), Whittington devoted an entire chapter to the ways in which politicians, rather than judges, determined the boundaries of federalism, yet these authors found no occasion to include even one reference to his account in their chapter on the very same topic. Michael Klarman's work gets no mention in their chapter on civil rights, even though no one has written more extensively about the political dynamics surrounding the Court's decisions in this area.

Fisher and Devins have spent many years expanding and enriching our understanding of constitutional politics in the United States. The Democratic Constitution is a faithful continuation of this body of work. However, after laboring so long to get others to pay attention to their lessons, the time has come for these authors to acknowledge and engage the research traditions that they helped set in motion.