73 Pages Posted: 1 Aug 2015
Date Written: July 30, 2015
When scholars traditionally debated issues of constitutional law or constitutional interpretation, they did so on the basic assumption that our written Constitution represents the nation’s exclusive highest law, that it can be formally altered only through a complex supermajoritarian process, and that the prophylactically insulated and unaccountable judiciary retains the final authority to interpret the document. For generations, it was thought unnecessary to develop a theoretical justification for this root assumption. But over the last few decades, this foundational assumption has come under scholarly attack. This has led us to ask: how does one define the core of American constitutionalism? The traditional understanding of American constitutionalism consists of two elements: the underlying principle of skeptical optimism, which can be found in the historical context within which the Framers gathered to draft the Constitution, and the political apparatus effectuating that idea — countermajoritarian constraint set against majoritarian power — which reveals itself through reverse engineering from the structural Constitution.
In this Article, we identify two sets of “modernist” scholars who believe themselves — wrongly — to be entirely disconnected from one another because they each attack a different aspect of the traditional understanding of American constitutionalism. “Constitutional realists” do not purport to dispute the animating purpose of American constitutional governance, but claim that the complete American Constitution is represented by more than just the entrenched written document. Similarly, “departmentalists” and “popular constitutionalists” do not disclaim the animating purpose of American constitutionalism, but claim that the written Constitution forbids judicial supremacy, or at least that it is neither constitutionally required nor normatively desirable.
Neither group acknowledges the existence of the other, presumably because they assume they are attacking entirely different aspects of our constitutional structure. But by exposing the fundamental flaws of these two theories and how they irremediably contradict the underlying principle and apparatus, this Article demonstrates the fundamental link between these modernists because the two activating devices they challenge are both essential components of American constitutionalism. As such, modernists who challenge them are functionally challenging the entire American constitutional tradition at its core. We therefore develop a more complete, revamped theoretical explanation of traditional constitutionalism that incorporates this understanding. What we label “premodern constitutionalism” asserts that the core of American constitutionalism has a tripartite theoretical foundation. It is the principle of skeptical optimism; the political apparatus of countermajoritarian constraint of majoritarian power structures which implements the principle; and the two key structural elements necessary to activate the political apparatus — an entrenched written constitution subject to formal alteration only by supermajoritarian process and a prophylactically insulated judiciary empowered to interpret it. Thus, our “premodern” form of constitutionalism revives the traditionalist model, and substantially strengthens it by detailing the serious defects in the modernist attack on the traditional understanding.
Keywords: constitutional law, constitutional theory, constitutionalism, due process; political theory, federal courts, judicial review, judicial independence, comparative law
JEL Classification: k10, k19, k30, k39
Suggested Citation: Suggested Citation