The Original Theory of Constitutionalism

42 Pages Posted: 8 Dec 2017 Last revised: 14 Feb 2018

See all articles by David Singh Grewal

David Singh Grewal

Yale University - Law School

Jedediah S. Purdy

Columbia University - Law School

Date Written: December 21, 2017

Abstract

The U.S. Constitution embodies a conception of democratic sovereignty that has been substantially forgotten and obscured in today’s commentary. Recovering this original idea of constitution-making shows that today’s originalism is, ironically, unfaithful to its origins in an idea of self-rule that prized both the initial ratification of fundamental law and the political community’s ongoing power to reaffirm or change it. This does not mean, however, that living constitutionalism better fits the original conception of democratic self-rule. Rather, because the Constitution itself makes amendment practically impossible, it all but shuts down the very form of democratic sovereignty that authorizes it. No interpretive strategy succeeds in overcoming the dilemma of a constitution that at once embodies and impedes democratic sovereignty.

Keywords: constitutional law, constitutional theory, originalism

Suggested Citation

Grewal, David Singh and Purdy, Jedediah S., The Original Theory of Constitutionalism (December 21, 2017). Yale Law Journal, Vol. 127, No. 1, 2018; Yale Law School, Public Law Research Paper No. 626; Duke Law School Public Law & Legal Theory Series No. 2018-6. Available at SSRN: https://ssrn.com/abstract=3084763

David Singh Grewal

Yale University - Law School ( email )

127 Wall St.
New Haven, CT 06511
United States

HOME PAGE: http://www.law.yale.edu/faculty/DGrewal.htm

Jedediah S. Purdy (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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