Constitutional Theory and the Faces of Power
THE JUDICIARY IN AMERICAN DEMOCRACY: ALEXANDER BICKEL, THE COUNTER-MAJORITARIAN DIFFICULTY, AND CONTEMPORARY CONSTITUTIONAL THEORY, Kenneth Ward, ed., Albany: SUNY Press, 2005
Posted: 9 Sep 2005
Constitutional theory has been decisively shaped by the image of the conflict between the Supreme Court and the political branches during the New Deal. Constitutional scholars have focused their attention on the ways in which the Constitution acts as a higher law constraining political actors and the pros and cons of a countermajoritarian Court armed with judicial veto. Like political scientists who studied the "first face of power," constitutional scholars have been most interested in explicit decisions that block others from exercising their political will. Constitutions shape political outcomes by other means, however, and constitutional scholars need to examine these other faces of constitutionalism. Notably, constitutions also help structure how political preferences are expressed and help constitute political preferences.
Keywords: constitutionalism, constitutional theory, judicial review, Bickel
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