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A Tradition at War with Itself: A Reply to Professor Rana's Review of America's Forgotten Constitutions: Defiant Visions of Power and Community

10 Pages Posted: 6 Oct 2017 Last revised: 9 Oct 2017

Robert L. Tsai

American University - Washington College of Law

Date Written: October 5, 2017

Abstract

This essay responds to Professor Aziz Rana's review essay, "The Many American Constitutions," 93 Texas Law Review 1193 (2015).

He contends: (1) my portrayal of American constitutionalism might contain a “hidden” teleological understanding of the development of constitutional law; (2) my notion of "conventional sovereignty" sometimes seems content-free and at other times "interlinked with liberal egalitarianism"; and (3) a focus on failed constitutions "inadvertently tends to compartmentalize the overall tradition."

I answer in the following ways: (1) I reject any sense that constitutional law has moved in an arc of steady progress toward Enlightenment and instead embrace a tradition of warring, eclectic, constitutional ideas; (2) the concept of conventional sovereignty captures the locus of mainstream constitutionalism at any given moment in time and doesn't try to insulate any particular governing ideas from contestation; and (3) the constitutions analyzed are exemplars of these popular concepts--some ignored or rejected by mainstream constitutionalism--but they don't purport to represent the entirety of the tradition.

Keywords: constitution, america, comparative jurisprudence, rights, tradition, constitutional law, constitutional history, culture, norms

Suggested Citation

Tsai, Robert L., A Tradition at War with Itself: A Reply to Professor Rana's Review of America's Forgotten Constitutions: Defiant Visions of Power and Community (October 5, 2017). Texas Law Review, Vol. 94, No. 60, 2016. Available at SSRN: https://ssrn.com/abstract=3048378

Robert L. Tsai (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, N.W.
Washington, DC 20016
United States
202.274.4370 (Phone)

HOME PAGE: http://www.wcl.american.edu/faculty/rtsai/

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