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Premodern constitutionalism.

ABSTRACT

The traditional concept of American constitutionalism has long been a basic assumption not subject to tremendous examination. For generations, scholars have understood our Constitution to be the byproduct of a revolutionary war fought for representation and a founding generation concerned with preventing tyranny in any form. The traditional understanding of American constitutionalism thus 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.

Over the last few decades, two sets of modernist scholars have attacked the activating devices that deploy the traditional vision of American constitutionalism. "Constitutional realists" do not claim to dispute the animating purpose of American constitutional governance, but they claim that the complete American Constitution is represented by more than just the entrenched written document. "Departmentalists" and "popular constitutionalists" also claim to accept the animating purpose of American constitutionalism, but they also claim that the written Constitution forbids judicial supremacy, or at least that it is neither constitutionally required nor normatively desirable.

Neither group acknowledges 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 shows modernist attacks on the two primary activating devices of our constitutional government--the singular written document and its prophylactic, insulated judicial interpreter--are attacks on American constitutionalism itself. We therefore develop a more complete, revamped theoretical explanation of traditional constitutionalism that incorporates this understanding. "Premodern constitutionalism" understands that the core of American constitutionalism has a tripartite theoretical foundation. It is the principle of skeptical optimism as well as the political apparatus of countermajoritarian constraint of majoritarian power structures, which implements the principle. And it is the two key structural elements necessary to activate the political apparatus--an entrenched written constitution and a prophylactic, insulated judiciary empowered to interpret it.
TABLE OF CONTENTS

INTRODUCTION
I.   TRADITIONALIST CONSTITUTIONALISM REVISITED:
     STRUCTURAL CHOICES WITH HISTORICAL EXPLANATIONS
     A. The Core Principle: Skeptical Optimism
     B. The Apparatus: Countermajoritarian Checking of
        Majoritarian Power
II.  THE MODERNIST DEPARTURES FROM THE TRADITIONALIST
     POSITION
     A. "Against the Constitution as Our Unique Supreme
        Law"--Constitutional Realism and the
        Extracanonical Constitution
     B. "Against the Ultimate Counter majoritarian Check of
        Judicial Supremacy"--Departmentalism and Popular
        Constitutionalism
        1. Departmentalism: A Historical and Doctrinal Argumer
           Against Judicial Supremacy
        2. Popular Constitutionalism: A Normative Attack on
           Judicial Supremacy
III. FASHIONING THE THEORY OF PREMODERN
     CONSTITUTIONALISM
IV.  THE FUNDAMENTAL GAP BETWEEN AMERICAN
     CONSTITUTIONALISM AND "UNWRITTEN" OR "INSUFFICIENTLY
     COUNTERMAJORITARIAN" CONSTITUTIONS
     A. Unwritten Constitutions
     B. Insufficiently Counter majoritarian Constitutions
CONCLUSION


INTRODUCTION

When we embark on the task of answering constitutional questions or teaching constitutional law, most of us start from the sensible position that our Constitution is interpretable positive law whose dictates must be respected. This requires us to accept three basic premises: first, that the written document is our supreme positive law; second, that the judiciary is empowered to interpret it; and third, that the judiciary's interpretation represents the final word as to its meaning. We must start from here; otherwise, there would be no purpose to engaging in the study of our founding document and the rules of governmental ordering that it sets forth, nor could we place any faith in the study of Supreme Court case law defining and demarcating the boundaries of federal power contained within our Constitution. Upon this foundation, we have built entire worlds of doctrine and constitutional theory.

It may come as something of a surprise, then, that a number of highly respected constitutional scholars have, in recent years, sought to undermine these premises. (1) We call these scholars "modernists" because they remind us of the architectural modernists who defiantly spurned tradition in favor of naked--and aesthetically displeasing--functionalism in the early twentieth century. (2) Architectural modernism was known for its determined rejection of history and tradition, free from the "idealization and imitation of some past era." (3) It disclaimed ornamentation and symbolism, which for centuries had been rightly understood as central to architecture's identity as a practice of aesthetic--a practical and necessary craft of urban design that was also, at its roots, steeped in artistry. (4)

Similarly, two sets of modernist constitutional commentators have proposed theories that reject the long-accepted tradition of American constitutionalism on the basis of different forms of naked functionalism. In one camp, self-described "constitutional realists" have variously claimed different positions on one basic assertion: that constitutions are composed of those laws, norms, and practices that principally define the relationship between the people and their government and set forth a nation-state's power structure. As such, they argue, the American Constitution is simultaneously more and less than the piece of parchment upon which the Framers scribed our supreme law in the late eighteenth century. It is less, insofar as some provisions of the Constitution are neither respected nor closely followed, and have thus been effectively written out of the Constitution by oversight or indignity. It is more, insofar as other laws and movements--powerful and meaningful ones that the American public views as fundamental to our relationship with our government, but have never been codified in the document--are nonetheless appropriately deemed to possess constitutional status. Surely no one can dispute, for example, that on a purely practical level the Civil Rights Act of 1964 has had a more profound impact on social and governmental ordering in the United States than, say, the Third Amendment (5) or the Emoluments Clause. (6)

Also in the contrarian modernist camp are those scholars who, while not denying the unique supremacy of the Constitution, nevertheless challenge the premise that our constitutional regime provides for a judiciary that is uniquely empowered and specially equipped to serve as the final arbiter of constitutional interpretation. Whether by legal or originalist argument, (7) or by observational or normative means, (8) these "departmentalists" and "popular constitutionalists" contend that the constitutional democracy the Framers devised was not built to support effective, enforceable judicial review. Departmentalists make the descriptive originalist argument that the Constitution envisioned all three branches as possessing equivalent power, and that allowing the judiciary's interpretation of the Constitution to bind the other two branches upsets the balance of coequal power. (9) Popular constitutionalists, on the other hand, make the normative argument that judicial supremacy is deleterious to the democratic vision of American constitutionalism. (10) Observing that judicial review and supremacy were not explicitly provided for in the Constitution, and that courts often act in concert with majority views despite their freedom from democratic oversight, these scholars understand our constitutional system to accept majoritarian authority over constitutional meaning and enforcement. (11)

This is uncharted territory to be sure; constitutional realists, departmentalists, and popular constitutionalists are nothing if not innovative. But there is, we believe, a reason that this territory has remained uncharted for so long: those who would depart from the premises that have long served to undergird American constitutional law fundamentally misunderstand the unique virtues of American constitutionalism. Our Constitution was specially designed with an eye toward protecting the American people against tyranny in all its possible forms, including majoritarianism. Theories that either obscure the nature of the Constitution or misunderstand its structural guarantee undermine America's most meaningful and significant contribution to political theory. This Article urges a return to a sort of traditionalism that uniquely understands that our Constitution (1) was written down, (2) in a single place, (3) to enshrine a constitutional democracy that would effectively balance our competing interests in celebrating majority interests with the need to protect minority rights.

The traditionalist view of American constitutionalism, however, was a premise rather than a reasoned conclusion. Literature explicating the traditionalist view is sparse because it has always gone without saying that our Constitution was ... well, our Constitution. But if we are to ask the question, "What is the American Constitution?," we will find the answer by examining how our Constitution came to be, and why the government was formed in the way that it was formed. What were the Constitution's causes, and what were its aims?

This ought not be an "originalist" inquiry, in which we seek to discern original intent or original meaning purely by way of excavation and historical research. An originalist inquiry inherently gives rise to often insurmountable archaeological difficulties and requires a different kind of scholarly methodology than is consistent with our lawyerly training. (12) The historical origins of our constitutional system lend some clarity in defining the borders of our constitutional framework, but simple reverse engineering does more of the theoretical work. Traditionalist theory glances at the broad, animating purpose of the Constitution and concludes, based on an assessment of the document's historical context and structural design elements, that the American method is a very particular type of constitutionalism, uniquely defined by its countermajoritarianism. (13)

We call our theory "premodern" because it presents a defense of the traditionalist view that probably could not have been fashioned prior to the modernist revolution. Modernist constitutionalism argues that American constitutionalism is not fundamentally defined by a single written proclamation of the supreme positive law of the land, one that is entrenched against majoritarian choices and pathology by providing for a prophylactically insulated judiciary empowered with the final say as to the document's meaning. But both types of modernism misconceive the nature of the American system. Our theory revives the traditionalist view, advancing its underlying values and rejecting modernist alternatives. (14) The premodern view fortifies traditionalism by articulating the essence of American constitutionalism: it explores the logical missteps at the heart of modernist theories and the dangerous consequences that would flow if they were accepted. Pre modern constitutionalism thus adds theoretical richness to the traditionalist model by carefully dissecting the serious defects in the modernist attacks on traditionalist American constitutionalism.

The Framers made a conscious, affirmative decision to write our Constitution down, intentionally breaking away from British tradition. Founding-era America's rejection of the British tradition of "unwritten" constitutionalism (15) was truly striking, and should play a meaningful role in forming a present-day understanding of the American Constitution. America's decision to break from the British model has been hailed as the impetus for our great constitutional revolution; many in the nineteenth century trumpeted the work of the Founders as out-of-nowhere, momentary brilliance. (16) But the truth is that, in the words of Hermann Eduard von Holst, the American Constitution came to be in a manner no different from other constitutions around the world, as "a result of actual circumstances of the past and present, and not a product of abstract political theorizing." (17) In fact, the idea of employing a single written document has been attributed to the existence of state constitutions and corporate charters at the time of the framing. (18) The Constitution "was no empty product of political theory," but was rather "a growth, or ... a selection from a great number of growths then before the Convention." (19)

The animating force behind this growth was the pervasive fear of tyranny. The Federalist paints a picture of a Founding-era obsession with tyranny; Hamilton and Madison saw it lurking behind every corner and under every bed. (20) Each measure the Founders took in the course of building the new federal government was directed toward safeguarding the nascent country and future generations of Americans against oppression in any form--tyranny of the majority, of the minority, of the aristocracy, of the plutocracy, or of the intellectual elite. When the Framers gathered in Philadelphia in 1787 to reconstitute the federal government, they sculpted a constitutional document that would be entrenched against simple majoritarian change, provide for checks and balances between the branches of government, and serve as the supreme law against which the validity of government action could be measured. The written Constitution itself, and the fact of its "writtenness," inescapably demonstrate the Founders' unique appreciation of humankind's potential for both flourish and folly.

This is not to say that citizens of countries with "unwritten" constitutions--such as England, Israel, and New Zealand--are necessarily wrong to refer to their constitutions as "constitutions." It is likewise not to say that a country like China, whose constitution does not feature countermajoritarian checking," (21) has no constitution at all--though, for reasons we will explain, both of these types of constitutions are highly prone to charges of illegitimacy. As we will discuss, constitutionalism as a general political philosophy is not focused on whether a constitution mirrors the American Constitution, but rather on what methodology a country uses to create public power structures that are legitimate according to some method of valuation. (22) In fact, the unwritten and unentrenched norms and laws that together form the "constitutions" of some countries might indeed be more legitimate than written and purportedly entrenched "sham constitutions" in other countries. (23)

In the United States, however, the Constitution is positive law. It does not merely set forth and structure the exercise of public power; rather, it establishes and imposes on the polity a set of rules and norms. Moreover, it designates enforcement mechanisms against both its subjects and its implementers. For a nation primarily concerned at the Founding with prophylactic avoidance of tyranny in a largely heterogeneous society, the writtenness and countermajoritarian entrenchment of the Constitution are both logical and fundamental. There was real structural brilliance to the constitutional regime that was created when our Constitution was ratified. For Americans, the Constitution performs four vital and overlapping functions: the document is descriptive, aspirational, structural, and checking. The descriptive Constitution sets forth the purposes of our constitutional regime. The structural Constitution sets up the processes of our government. The aspirational Constitution aims to achieve certain ideals. And the checking Constitution preserves the democratic process through the supermajoritarian limitation on majority rule.

The prophylactically insulated judiciary is the beating heart of the structural brilliance that defines American constitutionalism. Indeed, once the nation chose to adopt a written, mandatory, countermajoritarian Constitution, vesting the final say as to the document's meaning as well as the authority to enforce its provisions in the insulated judiciary became essential. This nation was born of a revolution fought for political accountability, and yet the Framers chose to make one of the three branches of our fledgling national government completely insulated from public accountability. That was no accident: only by including an entirely insulated judicial branch could this democratic republic be protected from itself. Democracy inherently embodies a belief in human flourishing and in the people's ability to control their own destinies by participating and believing in their representative government. But by establishing a politically unaccountable coequal judiciary branch, the Framers acknowledged that human flourishing could not be optimally accommodated if majorities were permitted to rule unchecked. (24) The Framers, concerned primarily with thwarting the threat of tyranny in any form, built a Constitution that enshrined as supreme law a uniquely American form of what we refer to as "skeptical optimism"--optimism that an empowered majority could achieve both great prosperity and personal growth, tempered by recognition that majorities trend toward oppressing minorities. To implement this skeptical optimism, our Constitution was structured around the political apparatus of countermajoritarian checking of majoritarian power. The choice to include an insulated judiciary was a meaningful one, and that judiciary's ability to provide prophylaxis was the keystone to the archway of achieving the Constitution's devised ends. Without a countermajoritarian judiciary armed with the power of judicial review, the entire design of our national government would be meaningless--or worse. Without the insulated judiciary authoritatively interpreting the Constitution, our structural Constitution would create the appearance of countermajoritarian checking against majoritarian impulses that, in reality, would amount to nothing more than illusion.

This Article proceeds in four parts. In Part I, we describe what we view as the traditional conception of American constitutionalism. Traditionalism depends upon historical context to define the principle at the core of our form of constitutionalism and depends upon reverse engineering from the structural Constitution to pinpoint the apparatus fundamental to converting that idea into political philosophy. (25) We can (and do) look to The Federalist and other early texts to develop the traditionalist model of American constitutionalism, but much of our explanation of traditionalism relies on straightforward examination of both the historical context within which the Constitution came into existence, and the structures embedded within it. In this way, we focus on the core principle animating our constitutional regime without reliance on the type of archaeological excavation required to advance an originalist argument. (26) The traditionalist model of American constitutionalism, we explain, is the common sense explanation for our structural Constitution. (27) The system designed within our unique written document can only be explained by the notion that the core of American constitutionalism is skeptical optimism driving the balancing of representative governance against meaningful countermajoritarian checks designed to control that government. It places the principle and the political apparatus at the core of American constitutionalism and understands the activating mechanisms of a singular written Constitution and a prophylactically insulated judiciary as logical outgrowths of a system built on these premises. (28)

In Part II, we explore the two prominent modernist attacks on the traditional view of American constitutionalism. By "modernist," we refer to revisionist views of American constitutionalism proposed in recent years by a number of highly respected constitutional theorists. This Part first examines constitutional realism and its argument that the entrenched, written Constitution does not comprise the totality of higher law in the United States. (29) In addition to being problematic from a practical perspective (and thus being undesirable from a normative standpoint), the realist argument is theoretically indefensible. In fact, as the discussion will show, in their efforts to recognize a realist form of constitutionalism, these scholars have--ironically--been wholly unrealistic because both the American people and the courts categorically reject the constitutionalization of nonconstitutional law. (30) Part II will then proceed to confront the modernist theories that challenge not whether the written Constitution represents the full extent of our higher law, but rather whether American constitutionalism requires, or even permits, ultimate majoritarian enforcement and interpretation. We will explain why departmentalists are wrong to oppose the idea that countermajoritarian judicial supremacy is fundamental to American constitutionalism, (31) and how popular constitutionalists err in arguing that majorities are better suited to interpret our supreme law. (32)

Part III explains the meaning of what we label "premodern" constitutionalism. Our position is that American constitutionalism is properly defined not only by skeptical optimism and countermajoritarianism, but also by the two activating mechanisms that have come under modernist attack. The Constitution is a written document that serves descriptive and prescriptive purposes, provides for the mutual checking of powers among the branches, and balances the ideals of human flourishing against the evils inherent in human nature. The written document is entrenched against the choices of temporary majorities, and the prophylactically insulated judiciary is designed to protect constitutionally guaranteed minority interests. Whereas historical context, common sense, and reverse engineering form the theoretical proof-points for the traditionalist model of American constitutionalism, the premodern model of constitutionalism urges a revival of traditionalism based on a critique of, and reaction to, the problems associated with both forms of modernism, as well as the troubling consequences that would inevitably flow from the adoption of either of them.

Finally, in Part IV we will demonstrate the correctness of the premodern view of American constitutionalism by contrasting it with foreign regimes whose constitutional models more closely align with the precepts of modernist constitutionalism. (33) This Part will examine the handful of "unwritten" constitutions that realist scholars have suggested can assist American constitutionalists in understanding the American regime. It will also examine an unapologetically majoritarian constitutional regime to demonstrate, as a practical matter, why departmentalist and popular constitutionalist theories are wrong to suggest that the activation devices of a singular written constitutional document subject to formal alteration only through supermajoritarian process and to final interpretation by prophylactically insulated judicial review do not lie at the core of American constitutionalism. We will explain why some of these foreign constitutional systems might be adequately suited to constitute the governments of more homogeneous or less cynical nations, but are by their very nature inconsistent with American constitutionalism and not properly engineered to address the American constitutional concern--namely, successfully securing prophylactic protection against the tyranny of majorities.

Some might read this Article as a thinly veiled assertion of American exceptionalism. In a manner of speaking, it is: we believe that the American constitutionalism we identify was uniquely tailored to safeguard our generative values, and that America's major contribution to legal and political thought is constitutional democracy, thoughtfully engineered to ensure freedom from the potential tyranny of unconstrained majoritarianism. This is not to say that the insulated judiciary always checks majoritarian action perfectly, or even effectively; indeed, the Supreme Court's actions have all too often demonstrated that it is far from infallible and may fail to protect minority interests against majority oppression. (34) But we argue that despite these lapses, the judiciary for the most part does abide by our Constitution as higher law. At the very least, unlike the executive branch, the judiciary does not threaten to impose its will through sheer military force, and unlike the legislative branch, it is not directly subject to the political pressures imposed by the whims and prejudices of the electorate. The system our Constitution deploys, through an entrenched countermajoritarian document and a prophylactically insulated judiciary empowered to interpret and enforce it, represents a structurally superior method of protecting against majoritarian choices and tyranny.

Our goal is to define clearly what American constitutionalism is and not necessarily to explain why it is plainly superior to all other forms of constitutionalism. It may be that other systems of governmental ordering more productively advance the shared interests of their governed. But if the skeptical optimism at the heart of our constitutionalism grows out of recognition of some reality of human nature, if there is some truth to the notion that humankind has extraordinary potential both to flourish and to oppress, then the traditionalist form of American constitutionalism--fundamentally, countermajoritarian checking of majoritarian power designed to preserve the rule of law activated through a written, supreme positive law and a prophylactically insulated judicial interpreter--is well tailored to implement it.

I. TRADITIONALIST CONSTITUTIONALISM REVISITED: STRUCTURAL CHOICES WITH HISTORICAL EXPLANATIONS

One of the most challenging tasks we face in developing a pre modern theory of American constitutionalism is pinpointing the traditionalism to which we urge a return. There is no rich literature devoted to the defense or development of the traditionalist model. Our Constitution employs a variety of tools and structures as means to achieve its underlying aim of defining a balance of powers built to avoid tyranny. For years, the scholarly debate focused squarely on what those tools and structures were, what their nature and limitations were, and how those tools were to be properly utilized. (35) Formalists argued with functionalists over the best use of our constitutional regime's implementational tools, but they never argued about the underlying principles for which those tools existed in the first place. (36) The traditionalism to which we refer has long been essentially a root assumption, not a logically reasoned conclusion.

For this reason, before examining the development of the two modernist views of American constitutionalism, we must explicate our traditionalist model. This traditionalist theory holds that the core of American constitutionalism is countermajoritarian checking of majoritarian power. In order to implement this vision, our regime relies upon a structural, written Constitution subject only to supermajoritarian modification, and a prophylactically insulated judiciary, which is to act as the final arbiter of the document's meaning. This structure is uniquely suited to strike a crucial balance embodying what we call skeptical optimism. On the one hand, our Constitution optimistically establishes representative government through the granting of a series of majoritarian powers: recognizing the continuing value of republican state governments in a federalist system, granting legislative authority to a representative Congress, and extending executive power to an elected President. Empowering majorities in this fashion grants freedom to the People to realize their potential and to flourish. On the other hand, our Constitution provides a series of countermajoritarian checks, the most important of which is the insulated Article III judiciary designed to safeguard minority views against majoritarian overreach and ensure that the supreme law--against which the legality of all other laws is measured--may be formally altered only by legal supermajoritarian action.

Put differently, the traditionalist view of American constitutionalism understands our nation's contribution to political theory as the construction of a regime that, due to its dedication to countermajoritarianism, uniquely implements its optimism that humankind can flourish if empowered. That same dedication to countermajoritarianism is due to its skepticism that unchecked empowerment will naturally devolve into tyranny.

A. The Core Principle: Skeptical Optimism

Traditionalist constitutionalism consists of two fundamental elements. The first is the core principle at the heart of American constitutionalism, which can be found within the historical context from which our Constitution sprang forth. The second is the political apparatus effectuating that principle, which is embedded in the structural Constitution itself and is best proven by a form of reverse engineering. We address each of these in turn.

First, reference to the historical context within which the Framers operated to develop our Constitution reveals the principal concerns that guided its construction. Two shadows loomed over the Framers when they gathered in Philadelphia to devise a new national charter in 1787. One was the memory of a revolution fought for the notion of "no taxation without representation" (37)--the new Constitution would need to enshrine representative government to ensure that power belonged, first and foremost, to the People themselves. The other was the failure of the Articles of Confederation, the original national charter that established a comically weak and ultimately dysfunctional federal government whose flaws gave rise to the convention in the first place. (38)

Breaking free from Britain was not merely an act of defiance against the antics of King George. It was also an act of defiance against a system of governance that was unacceptably unrepresentative of American colonists and unconcerned with protecting minority interests against majority rule. (39) Britain was a monarchy, of course, but its governmental structure was at the time one which granted supremacy to its majoritarian branch. Parliamentary sovereignty firmly defined the British system of governance. Britain had no written constitution or formally entrenched higher law. (40) Legal change in Britain was left entirely to the discretion of Parliament, a legislative body empowered to enact ordinary legislation and to ultimately determine the legality and legitimacy of such legislation, for the same majority necessary to pass legislation had the power to override any judicial determination of illegality. (41)

Soon after the colonies won their independence, the failed experiment of the Articles of Confederation began. (42) In many respects, the Articles were doomed from the start; intentionally devised to establish a feeble national government, they featured no presidency and a diffuse, largely impotent legislature. (43) Within less than a decade, the confederacy of states had functionally collapsed, and the states sent their delegates to Philadelphia with full knowledge that the result of the convention would have to be a stronger national government with meaningful legislative and executive capacities. (44)

The Constitution thus was developed within the context of two countervailing sentiments. On the one hand, the framing generation knew that in order to facilitate the human capacity for flourishing and to ensure that American society could achieve its potential, our new nation would need a strong, majoritarian, representative government that empowered the people. (45) On the other hand, the Framers were well aware of both world history and their nation's own recent history. They understood that humankind is just as disposed to folly as to flourish and that concentration of power in the majority, even when representative, could easily devolve into tyranny. (46) This "skeptical optimism" became the core driving force of American constitutionalism.

B. The Apparatus: Countermajoritarian Checking of Majoritarian Power

The second element of the traditionalist model is the political apparatus devised to implement the skeptical optimism at the heart of our form of constitutionalism. The Framers' skeptical optimism is readily apparent in Founding Era literature and is embedded in the history of both the American Revolution and the Founding. But its political apparatus is best explicated by reverse engineering from the structural Constitution itself.

With the historical realities motivating their skeptical optimism in full view, the Framers made two crucial decisions about how the American constitutional system would be shaped. First, in a decisive break from the British tradition, America would have a written Constitution that would serve as its singular, supreme law. And second, that Constitution would, by its terms and design, establish an empowered but limited federal government. (47) The Constitution the Framers produced was a direct response to parliamentary sovereignty's potential for tyranny, (48) an affirmative statement of the new republic's constitutive law, and an effort to balance the states' interests in maintaining a degree of autonomy while establishing a strong enough national government to preserve national economic and political health within the global community. (49)

The structures that were chosen to implement this vision of American governance are themselves quite revealing of the principles at the heart of our constitutionalism. The Constitution was foundational, prescriptive, and aspirational, but it was primarily built to deter the accumulation of power in a single branch or system. (50) Although dedicated to preserving state sovereignty, the

Constitution vested executive power in an elected President (51) and vested legislative authority in a full-fledged, permanent, bicameral Congress. (52) Although it foundationally empowered each of the majoritarian branches, it sought to guard against domination by faction and, shortly after ratification, codified a Bill of Rights affirmatively setting forth a list of negative individual rights based on the most cherished bedrock principles of our new constitutional republic. (53) And most important of all, despite their unwavering commitment to representative democracy and political accountability, the Framers conferred the judicial power, in writing, to a judicial branch that would, for all practical purposes, be politically unaccountable. (54)

As we will show later, perhaps the simplest way to prove the correctness of the traditional understanding of American constitutionalism is by examining and disproving modern challenges to the traditional theory. But without reference to modernist arguments, traditionalism finds its strongest support in basic logic grounded in reverse engineering: there is simply no good alternative explanation for the momentous decision to break from the British tradition and write our Constitution down in mandatory language, proclaim the supremacy of the Constitution as positive law, make it subject to alteration only through a complex supermajoritarian process, and create a politically unaccountable judiciary charged with constitutional interpretation. Creation of one of the three branches as a prophylactically insulated body in a nation created on the promise of representationalism was no accident. The political apparatus at the core of our constitutionalism was quite clearly a system of countermajoritarian checking of majoritarian power.

This continued to be true even as other nations experimented with new, different constitutional regimes deploying different political apparatuses and cherishing different central animating principles. The American Constitution was the first of its kind, so it is no exaggeration to say that from the late eighteenth century through the nineteenth century, asking whether a regime was constitutionalist was the equivalent of asking whether it had adopted the same constitutional structure employed by the United States.

The word constitution derives from the Latin constitutio, meaning "enactment," and original understanding of the word did not suggest the embodiment of a state's highest law. (55) As early as the second century, however, the plural constitutiones was used to describe a collection of sovereign enactments or even church-enacted canonical law. (56) Accordingly, the idea of the word "constitution" meaning higher, foundational law framing the exercise of public power stretched back several centuries before the Founders gathered in Philadelphia, but constitutionalism as a political philosophy really took hold and blossomed in the wake of the American Constitutional Convention.

Constitutions continued to spring up throughout the world, employing alternative methods of government ordering, political organization and structure, and protection of individual liberties. (57) As a result, the definition of constitutionalism broadened to capture these constitutional structures. (58) Today, constitutionalism is a political philosophy wherein good government requires promulgation of a code of bedrock principles that defines the relationship between government and the governed both by defining the scope and limitations of government power and by securing individual rights and liberties. (59) As a discipline of political discourse, constitutionalism is the "systematization of thinking about constitutions grounded in the development since the [mid-twentieth] century of supranational normative systems against which constitutions are legitimated." (60) Broadly defined, constitutionalism is a method of understanding the orderly, civilized profiling of the interface between the people and their government, subject to the rule of law. (61)

There are, to be sure, a variety of ways in which constitutional regimes may practice constitutionalism. This is because constitutionalism is defined simply by the existence of a code of clear and identifiable foundational principles of government and social ordering, not by the means a regime uses to establish, implement, and enforce that code. (62) Whether a constitution is written or unwritten, or whether it provides for pure majoritarian rule or envisions a countermajoritarian check, it can still, potentially, constitute a legitimate exercise of constitutionalist governance. (63)

Modernist constitutional scholars celebrate general substance over particular form, holding that constitutions are the laws and norms structuring a people's relationship with its government and defining how government can exercise public power. (64) John Ferejohn and Lawrence Sager have noted that "constitutional practices can usefully be understood as commitment devices," methods for governments to express to both citizens and outsiders their commitments to protecting private property, recognizing unpopular minorities, or furthering the rule of law. (65) David Law has likewise defined constitutions "as the set[s] of rules and practices--written or otherwise--that allocate[], and structure[] the exercise of, public power." (66)

Structuring a nation's political powers, defining a nation's most cherished individual rights, and ensuring that the government provides a mechanism for protecting liberty are all key aspects of the process of codifying government power and limitation through constitutionalism. (67) But today's understanding of constitutionalism suggests that nations have a variety of options to effect this purpose. Ultimately, whether a regime employs a form of constitutionalism and whether a constitutional regime is legitimate are entirely different questions. Some regimes that employ a written constitution with affirmative guarantees as to government structure and individual rights fail to live up to the promises enshrined in their constitutions. (68) Other regimes with no bill of rights or designated higher law have proven "legitimate" by constitutionalist standards because they otherwise identify the principles of law that constrain their governments and provide for the wellbeing of their governed. (69)

We mention all this to emphasize that, despite the changing conception of what a nation must actually do to have a constitution and adhere to constitutionalism as a political dogma, American constitutionalism has always been defined by its structural design and underlying goods. (70) The two are inseparable. The American Constitution was not written simply to establish and define the relationship between the government and the governed, though it surely does that; rather, it was written primarily to effectuate a very particular relationship premised on a form of universal and mutual distrust.

Other nations have chosen alternative ways to establish, implement, and enshrine their codes of bedrock principle, and this variation does not automatically make them any less "constitutionalist," at least on an abstract, definitional level. But the traditionalist view recognizes that American constitutionalism is, at its core, about enshrining countermajoritarianism. One can strip away whatever else one wishes from our constitutional design, but our Constitution ceases to implement American constitutionalism the moment one undermines the principal activating force of our system: an entrenched, written, countermajoritarian statement of positive law subject to interpretation and enforcement by a prophylactically insulated judiciary.

We readily acknowledge that merely providing for an insulated judiciary is not necessarily the same thing as providing for prophylactically insulated judicial review or judicial supremacy. Scholars have puzzled over the basis of judicial review for quite some time. Nothing expressly written into the American Constitution explicitly states that there shall be judicial enforcement of the metes and bounds of constitutional directives, either between the states and the federal government or between the federal government's coequal branches. It seems as though, in order for traditionalism to carry any water, there must be some textual basis for judicial review. Here, we briefly explain why the structural Constitution necessarily demands judicial review.

It is worth noting that judicial review appeared to be assumed by the Framers at the time of ratification. Alexander Hamilton consciously sought to switch the textual inertia in The Federalist No. 78, taking notice of the importance of judicial review and essentially suggesting that unless the text of our new Constitution foreswore judicial review, it should logically be deemed part and parcel of the exercise of judicial power under Article III. (71) But, judicial review might also find its textual basis in the "arising under" language of Article III: by giving the judiciary the power to adjudicate "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority," (72) the Constitution empowered the judicial branch to enforce the Constitution's limits and ensured both vertical power checking (constitutional federalism and supremacy enforcement) and horizontal power checking (separation of powers).

Yet another textual basis for at least the bulk of judicial review is the guarantee of due process contained in the Fifth and Fourteenth Amendments. (73) Both amendments forbid governmental deprivation of life, liberty, or property without due process of law.'4 The argument that these provisions codify judicial review can be framed in one of two ways. First, it could be asserted that any time individual rights to liberty, property, or life are placed at risk, a neutral, independent adjudicator is a fundamental component of the due process guarantee. This rationale works well when a right guaranteed by the Constitution is at stake. But the direct link between a structural breach (by one branch upon another or by the federal government upon the states) and the infringement of a liberty interest protected by the Due Process Clause is, some might argue, problematically attenuated.

The other way to frame due process as the textual basis for judicial review is to argue that any litigant who satisfies Article Ill's standing requirement of injury in fact or who stands to lose property by way of a damages award in a case or controversy has a due process right to an independent adjudicator. Due process, then, is not triggered by the nature of the particular claim being brought, but by the fact that a property interest is at stake--regardless of the substantive basis for a claim. Alternatively, it could be argued that judicial review arises out of constitutional due process in two other, related ways: first, in disputes with or between governmental branches, adjudication must be neutral; and second, under Chief Justice Marshall's private rights model, deciding constitutional meaning is incident to deciding cases in which constitutional issues are raised. (75)

Herbert Wechsler proposed the Supremacy Clause (76) as the textual anchor for judicial review. (77) His argument was that, in textually declaring the Constitution the supreme law of the land, the Constitution itself demanded judicial review. (78) Yet this theory is problematically question begging. Yes, the Supremacy Clause dictates that the Constitution shall be the supreme law of the land, but that says nothing about which branch gets to say what that Constitution means. It can sensibly be read to imply the judiciary's role in enforcing vertical power checking, but, without the logical implication that Hamilton recognized in The Federalist No. 78, (79) the question of the judiciary's role as a means of prophylaxis against horizontal breaches remains unresolved.

In truth, the most logical explanation of judicial review is, as described

in our earlier discussion, common sense, a conclusion derived through both logic and reverse engineering from the structural Constitution itself. The Constitution was the product of debate and coordination among a group of people who sought respite from the unrepresentative government of England, (80) feared faction, (81) and worried about the tyranny of accumulated power. (82) Yet, despite the Framers' deep-seated belief in representative government, the Constitution set forth a federal judiciary that was thrice insulated from majoritarian whim: the judicial branch would be staffed by unelected judges, serving lifelong terms with salary protections, and only removable by impeachment for bad behavior. (83) In other words, the judiciary would be completely politically unaccountable. No logical explanation exists for the provision of an unaccountable judiciary except the obvious one: that the entrenched, countermajoritarian Constitution would need such an insulated, prophylactic judiciary to police its structural mandate and ensure its supremacy. (84)

The defining goal of American constitutionalism is to strike a balance between democracy and distrust. (85) Our constitutionalism is concerned with fulfilling the promise of an American dream and rewarding communitarianism. The Constitution trusts majorities to elect representatives who will legislate and a President who will execute laws in accordance with the will of the people on a day-today basis, and trusts the states to serve as laboratories of democracy and capitalist experimentation. (86) But it leaves no room for the power of the majority to overtake minority interests. By defining our supreme law in a single Constitution that provides for countermajoritarian checks by a prophylactically insulated judiciary, American constitutionalism is uniquely tailored to create a formal barrier against slipping into tyranny.

II. THE MODERNIST DEPARTURES FROM THE TRADITIONALIST POSITION

In Part I, we described what we have labeled the "traditionalist" view of American constitutionalism. American constitutionalism is, at its core, the embodiment of skeptical optimism in a political apparatus of countermajoritarian checking of majoritarian power. Our skeptical optimism is effectuated by enshrining our highest law in an entrenched written document subject to formal revision only by means of supermajoritarian amendment and whose limitations are subject to enforcement by an insulated countermajoritarian interpreter--the judiciary. Subsequent debates about the mechanics of implementing this vision typically skip explaining or defending this first step because it is simply taken for granted.

In recent years, however, scholars have developed two forms of what can be called modernist theory. Although acceptance of these theories in the courts is all but nonexistent, highly esteemed commentators have taken up their cause, and a wealth of literature has sprung forth advancing their arguments. Modernist scholars have engaged in an attack on the theoretical foundations located in step one, essentially challenging the nature of our constitutionalism itself. "Constitutional realists" and proponents of the "extracanonical constitution" challenge the premise that the complete American constitutional regime is set forth in the singular written document we identify as the Constitution. (87) "Departmentalists" and "popular constitutionalists," on the other hand, acknowledge the value and weight of our written Constitution as the complete source of our supreme positive law, but dispute the role of the judiciary and thus our Constitution's countermajoritarian roots. (88)

Puzzlingly, scholars in each of these two camps devote virtually no attention to one another. But they are more alike than they realize, for they both misidentify the fundamental characteristic that makes our constitutionalism ours. We refer to both of these classes of scholar as "modernists" because both mark a clear break from the "traditionalist" view of American constitutionalism we have identified. (89) Unfortunately, both scholarly groups advocate approaches that, for reasons outlined below, we must largely reject.

A. "Against the Constitution as Our Unique Supreme Law"--Constitutional Realism and the Extracanonical Constitution

The classical story of American constitutionalism should be familiar to anyone who has ever graduated from grade school in the United States: In 1787, the Founders gathered in Philadelphia to reconstitute the federal government in the wake of the failure of the Articles of Confederation. (90) They crafted a written document designed to set forth the rule of law, define the order of legal supremacy, and construct our federal governmental structure. The document was ratified and amended shortly thereafter to include a list of negative rights. (91) Over the next two hundred years, the document was amended seventeen more times, and judicial interpretation of the document and its amendments helped the American people and their representatives understand the scope and limitations of constitutional governmental power. (92)

This was how early American legal theorists defined our constitutional government. In the late eighteenth century, the Founders understood the Constitution to embody the sum total of American supreme law. (93) One hundred years later, as the people rejoiced in the centennial anniversary of the Constitution's ratification, commentators hailed the uniqueness of the American constitutional regime. (94) The power of the American Constitution, they wrote with reverence, came in its brilliant duality: a written document enacted by the people, but entrenched against change and not subject to the shifting choices of momentary majorities. (95) Use of the written format was key, "for how would it be possible to argue upon the constitutionality of any measure, when there was no constitution in existence"? (96)

The story of the American Constitution told by a number of highly regarded twentieth- and twenty-first century constitutional scholars, however, is strikingly different. Starting with Karl Llewellyn, the twentieth century saw scholars adopt what they termed a "realist" view of the Constitution. (97) Llewellyn argued that the Constitution's text and the system set forth therein constitutes our government only insofar as modern practice and conventions continue to perpetuate their reign. (98) His primary argument was that the only elements of the Constitution that live on today are those to which modern Americans continue to adhere. (99) Moreover, he argued, the Constitution itself was merely an experimental first step toward creating a constitutional institution--a broad code of behavior and norms that structures the relationship between the people and their government. (100)

Recent constitutional history contributed to the scholarly shift to constitutional realism as well. This country has changed profoundly over the last 150 years, but change has largely been effected outside of the constitutional amendment procedure. Article V was written to require supermajoritarian action to achieve constitutional amendment precisely because the Constitution was our supreme law. (101) Those elements of positive law that we mustered the strength to etch into stone would be emblematic of our most cherished values and would safeguard the spoils of social progress against arbitrary repeal or reversal. Yet the reality is that since the years following the Reconstruction Amendments, most--though by no means all--of our greatest political and legal achievements have been implemented by ways other than resort to the amendment process of Article V. (102)

Over the last century and a half, the constitutional amendment process has given Congress the power to levy an income tax, (103) established direct election of the Senate by popular vote, (104) granted women the right to vote, (105) enacted (106) and discarded prohibition on the manufacture and sale of alcohol, (107) changed the date the President takes office (108) and limited the number of terms he could serve, (109) granted electoral college votes to the District of Columbia, (110) and established the order of presidential succession. (111) Meanwhile, the country's changing perspective on individual liberties--which were quite clearly the focus of the Bill of Rights and the Reconstruction Amendments--has become the law of the land mostly by way of statutes, (112) treaties, (113) and judicial decisions. (114) And the nation has implemented major changes to the general structure of the federal government outside of the constitutional amendment process as well, most notably in the broad expansion of the administrative state throughout the New Deal. (115) Article V amendment simply has not been the primary mechanism by which post-Reconstruction America implements major structural change or enshrines civil liberties. (116)

That great change has taken place without constitutional amendment to facilitate it is one of the central proof points for constitutional realists: because the American people have come to understand new constraints on government power without Article V amendment, the written document and its subsequent amendments and judicial interpretations cannot possibly form the complete American Constitution. (117) Instead, constitutional realists assert that the complete American Constitution must consist of something more diffuse and difficult to ascertain. Realist commentators throughout the academy have thus taken to challenging the value of the written Constitution, variously claiming that American constitutionalism consists of the founding document and some combination of statutes, judicial precedents, treaties, constitutional understandings, social norms, movements, and conventions. (118)

To the extent that the realists are arguing that widespread societal practice may effectively repeal provisions contained in the formal document, their argument may well give rise to serious moral problems. By that reasoning, presumably the longstanding existence of Jim Crow laws in the post-Civil War South would constitute a repeal--at least regionally--of the Fourteenth Amendment's Equal Protection Clause. (119) This form of "repeal by adverse possession" would of course defeat the purposes of having a written constitution in the first place. To the extent the realists are arguing, not that the written Constitution may be reduced by widespread practice but rather that it may be augmented by such practice, however, the issue becomes more complex. That the United States has a written Constitution is beyond dispute. But that the document written in 1787 and subsequently amended twenty-seven times represents the complete "United States Constitution" is, remarkably, far from settled.

Modernist theorists have argued that the complete American Constitution is broader than the written document. Todd Pettys, for example, has described the written Constitution as a "myth" because the three chief functions the American Constitution serves--(1) creating, empowering, and limiting the branches of the federal government; (2) establishing basic rights that may be asserted against government action; and (3) providing rules of recognition--are often accomplished by statutory or other non-constitutional means. (120) He writes:
   If a newcomer to the United States wished to understand the
   structure of the federal government, the powers of its
   institutions, the content of its citizens' rights, and the
   rules and principles from which Americans ultimately draw
   when determining whether the government has behaved permissibly
   in a given instance, he or she would need to do much more than
   merely study the texts that the American people formally have
   assigned constitutional status.

   ....

      ... To many Americans today, individual rights conferred by
   such statutes as the Civil Rights Act of 1964, the Voting Rights
   Act of 1965, and the Americans with Disabilities Act of 1990 are
   every bit as important as many of those that are explicitly
   conferred by the formally ratified constitutional texts. In these
   respects, the 1787 document and its enumerated amendments
   do comparatively little of the actual work of constituting the
   nation's government and of protecting individual rights that the
   citizenry deems important. (121)


Bruce Ackerman takes a similar "alien visitor" angle. (122) In the latest addition to his We the People collection, Ackerman begins with a fictional account of a conversation between himself and a hypothetical Middle Eastern scholar who is ignorant of the Constitution and the history of American social change, but is an otherwise brilliant and capable constitutional interpreter. (123) Professor Ackerman's imaginary student walks through the Constitution, article by article and amendment by amendment, but cannot glean from the Constitution alone how modern Americans understand their relationship with the federal government. (124) Ackerman rightly points out that an alien with no knowledge of American history or custom could learn a great deal about American constitutional law by reading the original document and Bill of Rights, but would likely give added weight and faulty historical significance to provisions that are either unimportant or misleading. (125) Likewise, he says, so limited a reading would fail to recognize the way major social movements since the founding have informally amended the Constitution. (126)

Professor Ackerman's theory revolves around the idea that on occasion popular sovereignty leads to a groundswell, from movement to party to president, and that at the end of a five-step process of signaling, proposal, triggering, ratifying, and consolidation, the people engage in informal constitutional amendment. (127) These "constitutional moments" change the meaning of the Constitution in some permanent way. (128) He argues that one such moment occurred through the legislative action that took place during the brief window in time from (1935-1938), after which Americans accepted the New Deal and the basically limitless nature of the Commerce Clause. (129) Professor Ackerman sees signaling in the election of Roosevelt and the popular movement behind him; he sees the growth of an active federal government that can truly regulate commercial activity as the proposal; triggering in Roosevelt's first reelection; ratification in Roosevelt's second reelection (even in spite of his court-packing plan); and consolidation when, in later years, even the Republicans simply accepted the new Rooseveltian federal government as constitutionally permissible. (130) In his latest volume, Ackerman argues that the civil rights movement and the passage of the Civil Rights Act together form another of his "constitutional moments." (131) Asserting that the same five-step process of informal amendment occurred in the 1960s, he says the Voting Rights Act, the Civil Rights Act, and the progress this country made during the civil rights revolution have been constitutionalized--even though they appear nowhere within the text of the document. (132) "I am taking the next step," he says, "urging you to discard the residual quasis and other hesitations and grant full constitutional status to the landmark statutes of the civil rights revolution. Otherwise, our view of this great American triumph will be profoundly distorted." (133)

Ernest Young has similarly employed Llewellyn's realist logic to pinpoint what he calls "the constitution outside the Constitution." (134) According to Professor Young, because some statutes, treaties, conventions, and norms are "constitutive" in their form and their function, they can be said to be part of the broader American Constitution. (135) Specifically relying on Llewellyn and other early constitutional realists, Professor Young argues that "the role of ordinary law in constitutional ordering is pervasive" and thus a complete understanding of the American Constitution requires interpreters to look beyond the Constitution as formally enacted. (136) He points to a handful of statutes, including the Clean Water Act of (1976), and explains that because they serve a government-ordering function and help to define our relationship with our government, they form part of the American Constitution. (137) Professor Young and other realists argue that because other statutes share traits with the Constitution--by creating government, conferring individual rights, and being at least somewhat entrenched against change--they can be said to be part of the broader constitutional picture in the United States. (138)

All of this amounts to self and public deception. Constitutional realists challenge the fundamental import of the Constitution's writtenness while purporting to leave intact the underlying principles at the core of the American vision. They do not assert, for example, that the judiciary is not possessed of interpretive power, that the structures contained within the document fail to serve checking purposes, or that the convention failed to produce a document of meaningful constitutive value. Indeed, proponents of constitutional realism and the extracanonical constitution would likely not dispute the fundamental elements of the traditional view of American constitutionalism--that the written Constitution implemented American skeptical optimism through a political apparatus comprised of countermajoritarian checking against majoritarian power--as an assumed premise. Even if all of this is true, however, they argue that we have not necessarily located all of our nation's constitutive law in the written document.

The trouble with this argument, however, is that in order to arrive at their conclusion that the written document need not embody the entirety of American constitutive law, constitutional realists necessarily disclaim skeptical optimism and countermajoritarianism as defining characteristics of American constitutionalism. Professor Pettys's three chief functions of the American Constitution are fine descriptions of some of the Constitution's principal attributes, (139) but ordinary legislation enacted by the majoritarian process of bicameralism (140) and presentment (141) serves those functions in a categorically different fashion. Unlike rights and dictates actually grounded in the text of the Constitution, all of these statutes, no matter how fundamental we currently deem them to be, may be repealed by the traditionally majoritarian legislative process, which requires only bicameralism and presentment. And we know this to be true--ironically--because the real Constitution tells us so.

The idea that much of our politically and legally transformative law has been subconstitutional is perfectly consistent with the concept of constitutional democracy. The formal amendment process was purposely made extremely difficult in order to prevent the current views of the prevailing majority from being constitutionalized because such change binds future majorities. (142) It is only when the alteration is truly foundational that it is to receive formal constitutional status. As a result, on most occasions when majoritarian preferences are transformed into law, they are just as easily subject to future modification due to changes in those preferences. Except for truly foundational matters that have received formal constitutional status, democracy permits nothing else.

Perhaps the modern realists are engaged in a game of semantics. Perhaps they have chosen simply to equate law that is so ingrained within our nation's tradition that it is reasonably characterized as "fundamental" with law dictated by the Constitution. But while both forms of law could plausibly be characterized as "fundamental," that does not mean the two forms of law are legally and structurally identical. For example, the 1964 Civil Rights Act can be repealed if majorities in both houses of Congress vote to do so, and the President signs that bill. The First Amendment, in stark contrast, may not be repealed in this manner. Rather, it may be repealed only by compliance with the extremely demanding requirements of Article V. We presume that even Professors Ackerman and Young would have to concede as much. Indeed, if they are unsure of this conclusion, a recent graduate of an eighth-grade civics course could confirm it for them. (143)

Insofar as ordinary legislation limits federal governmental power or establishes basic rights that may be asserted against the government, one must ask how truly effective those limits are and how basic the rights established actually are if temporary majorities can easily erase them. To be sure, the Civil Rights Act of 1964 was a powerful piece of legislation that inarguably expanded minority rights and took a dramatic step toward perfecting the vision of the Reconstruction Amendments. And it is true that given current political realities, it is highly unlikely, if not unthinkable, that it will be subject to repeal, at least in the foreseeable future. But American constitutionalism is premised on the idea that mere political improbability is not sufficient to safeguard against the tyranny of temporary majorities. Every trace of the prophylactic skepticism that the traditionalist view places at the heart of our constitutionalism vanishes when one ascribes constitutional weight to ordinary legislation.

Moreover, any new federal power established by majoritarian act can be nullified by the Supreme Court for noncompliance with the enumerated powers contained within the written Constitution. It is easy to say that, because of its profound impact on the process of selecting the people who will serve as our representatives in the federal government and its powerful role in defining the relationship between people of color and their government, the Voting Rights Act is a piece of constitutive law. (144) But reality belies realism, as was made clear by the Court in Shelby County v. Holder, in which the Court held unconstitutional Congress's method of implementing a key provision of the Voting Rights Act because it violated the structural federalism set forth in the Constitution. (145)

One might reasonably suggest that if we want to insulate legislation such as the Civil Rights Act of 1964 from the choices of future majorities, we should constitutionalize it through Article V's formal amendment process. But purely as a matter of streetwise politics, it is virtually inconceivable that this would ever happen at any time in the foreseeable future. The reason, ironically, is that as presently structured, the current Congress would probably never provide the requisite majority, and if it were to do so, it is extremely doubtful that the requisite supermajority of state legislatures would concur.

Constitutional realism is not only descriptively wrong, but also normatively undesirable if for no other reason than that it renders ambiguous at best and incoherent at worst a constitutional regime whose core simplicity is one of its great virtues. If the Voting Rights Act was part of an informal process of constitutional amendment or is part of our broader American Constitution, was Shelby County also a judicial act of constitutional amendment? Who gets to decide when a "constitutional moment" has taken place? (146)

Moreover, the danger of ideological manipulation plagues any attempt to extend the "constitutional" label beyond the four corners of the actual document. (147) It is perhaps telling that Professor Ackerman grants constitutional significance to the New Deal and the legislation arising out of the civil rights movement, (148) but not to the Alien and Sedition Acts, (149) the Internal Security Act of 1950, (150) or the USA PATRIOT Act (151)--all three of which served to change the nature of the relationship between the government and the governed, had profound impacts on the exercise of federal power, and contravened liberal values. (152) Because of its inherently vague contours, constitutional realism provides the opportunity for people to engage in all sorts of definitional subterfuge to advance their own political ideals.

What is most striking about the realist approach is, ironically, just how unrealistic it is. Realist scholars assert that some aspects of the written Constitution are borderline irrelevant because they are not significant in defining the way the government executes public power. (153) Likewise, they say, some extracanonical laws and norms are now to be deemed woven into the Constitution itself. (154) But one need look no further than the Supreme Court Reporter to see how our Supreme Court engages in all kinds of contortionism just to stay within the boundaries set up by the written document. (155) The very purpose of realism is to look past formality to acknowledge what is actually happening in the world and describe things as they are, (156) but neither citizens nor the Court understand the statutes, movements, or social norms that supposedly comprise the American "constitution outside the Constitution" to actually function as our constitutive law in the same way the Constitution does. If the Court understood our Constitution as the realists do, the Court would have no reason to search for an individual right to bear arms in the Second Amendment (157) or a right of privacy in the penumbras of the Bill of Rights. (158) Nor would there have been a reason for either conservative Justices to have grounded the concept of economic freedom--anomalously--in the Due Process Clause, (159) or later decisions to reject that doctrine for the very reason that it had no basis in text. (160)

All told, constitutional realism is unrealistic because it minimizes the role of our written Constitution and extends constitutional status to laws that can indisputably be altered or repealed by majoritarian action. (161) It therefore confuses the boundary between supreme and inferior law in this country. Lawmakers, the American people, and the Supreme Court have always understood the Constitution as setting forth a dictated framework that, although subject to changing interpretation by a countermajoritarian judiciary, at its outer limits may only be changed by a difficult supermajoritarian process. (162) The American Constitution has always been accepted as specifically removed from change by majoritarian process, and even in the context of the New Deal--the closest thing to majoritarian process changing our constitutional framework America has experienced--the Court never openly ignored this directive. (163) A somewhat later example is Griswold v. Connecticut: even when recognizing rights never before found and with no textual basis in the Constitution, the Court went out of its way to ground its decision in the written Constitution (in that case, finding an individual right to privacy embedded somewhere between the lines of the Bill of Rights). (164)

In some ways, constitutional realism is merely a byproduct of the increasing number of constitutions in existence throughout the world. Since the Philadelphia convention in 1787, hundreds of national constitutions have been drafted and ratified in countries as far-flung and varied as China, (165) South Africa, (166) Spain, (167) and Argentina. (168) Different regimes have deployed different structures to effectuate constitutional governance and to enshrine a wide range of values and national goals. (169) As a result, the scholarly conception of what defines constitutionalism has evolved to capture a wide range of regime choices. (170) Constitutional realism seems logically to spring from the changing global perspective on what, generally speaking, comprises a constitution.

This is how the divergent theories of political constitutionalism and legal constitutionalism came to be viewed as concurrently legitimate despite their seemingly contradictory designs. Elements of each appear within the other, but the two approaches to constitutionalism are, at their roots, diametrically opposed to one another. (171) In her recent article about the British judiciary, Professor Erin Delaney described the fundamental difference between legal constitutionalism and political constitutionalism as "the institution or institutions entrusted with the responsibility for ensuring both accountability and governmental (and possibly societal) fidelity to the constitutional order." (172) She wrote:
   Legal constitutionalists maintain that constitutional goods are
   best guaranteed through the articulation of rights-protecting
   fundamental law, a law that stands superior to and apart from
   daily political machinations and to which all governmental
   institutions are bound, primarily through the mechanism of
   judicial review. In contrast, political constitutionalists argue
   that resting ultimate authority in a democratic parliament
   better achieves the "constitutional goods of rights and the rule
   of law," by protecting values of democracy and republican
   non-domination. (173)


Importantly, political constitutionalism is almost invariably "unwritten," or more precisely, written in scattered sources rather than a single comprehensive written document. (174) In contrast, legal constitutionalism tends to look to a single source of supreme law. (175) There are, to be sure, contrarian voices on both sides. (176) Some scholars have argued that political constitutional regimes might have a role for courts to play and that political and social realities create a dynamic within these regimes that might expand and calcify the judicial role; some others have offered that majoritarian influences should play a more significant role, and courts a lesser one, in legal constitutional regimes. (177) Thus, perhaps as a general, nation-agnostic assessment of what comprises a constitution, realism makes some sense. But constitutional realism has led to what should be an impermissible logical next step: the practice of drawing lessons and importing values from nations for whom constitutionalism is not defined by the same core principles as is our own.

Scholars lean on Llewellyn, Ackerman, Young, William Eskridge, and John Ferejohn to point out that a constitution is above all else--and perhaps without all else--the set of rules, standards, practices, and norms that compose the continuing understanding of how the government exercises power. (178) If that is true, then the American Constitution might look a lot more like the British or Israeli constitutions than we realize, and might include a variety of ordinary laws and norms outside of our constitutional document. But as a matter of American constitutionalism, it seems at the very least misleading, and more likely just categorically wrong, to ascribe constitutional significance to extracanonical elements of our legal regime.

The word "Constitution" has traditionally possessed special meaning in the United States. (179) It is a powerful word whose usage in political speech and legal argumentation amounts to a trump card. (180) It is understood to be higher law, or the ground rules of the game, and it limits the scope of all other discussion of American law. (181) A word might have a variety of definitions throughout the world, but merely sharing traits with the Constitution does not make these statutes part of the American Constitution. This is precisely because the United States Constitution is contained within a single document that provides for interpretation and enforcement as supreme by the insulated judiciary. (182) That design lays the foundation for entrenchment, creation of government, and conferral of individual rights upon which politics, social movements, and legislation can build other elements of public power. By diminishing the importance of the written Constitution and ascribing constitutional significance to extraconstitutional directives, realist scholars destabilize a constitutional regime that is uniquely situated to achieve a very particular American constitutional mission. The "complete" American Constitution cannot include statutes such as the USA PATRIOT Act, (183) the Civil Rights Act, (184) or the Clean Water Act (185) without diluting the power of our constitutional regime, especially because each of these laws can legally be displaced by simple majoritarian act. (186)

Constitutional realists conflate the idea of constitutionalism evolving to accommodate other constitutional regimes with American constitutionalism evolving to include the other pieces of our code that implement our bedrock principles. But what they fail to recognize is that our form of constitutionalism does not allow for acknowledgment of bedrock principles in ordinary statutes. (187) This is because our method of promulgating a code that includes our bedrock principles and determining how we would like to create, implement, enforce, and protect that code is by means of a single comprehensive document that establishes a checking branch. (188) Including other forms of law under the constitutional heading minimizes the uniqueness of our contribution to political theory, threatens to dilute the force of the real Constitution, and gives rise to at best enormous confusion, and at worst, cynical political manipulation.

Given the traditional American understanding of the term "constitution," our concern is more than semantic, for to attribute constitutional weight to noncountermajoritarian elements of our legal and governmental system, regardless of the phrasing one uses, is downright deceptive. To the extent that the words "constitutional" and "constitution" retain their long-accepted American meaning, the realists are simply wrong. American constitutionalism is, at its core, the practice of codifying countermajoritarian limits on majoritarian government. So long as those laws and norms that realists deem part of the extracanonical constitution are subject to modification by majoritarian processes, (189) realists cannot be describing the Constitution in the American sense of the word. And we know the elements of the extracanonical constitution are subject to majoritarian change, ironically, because the Constitution itself authorizes majoritarian processes to change them. (190)
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Title Annotation:Abstract through II. The Modernist Departures from the Traditionalist Position A. "Against the Constitution as Our Unique Supreme Law" - Constitutional Realism and the Extracanonical Constitution, p. 1825-1870
Author:Redish, Martin H.; Heins, Matthew D.
Publication:William and Mary Law Review
Date:Apr 1, 2016
Words:11770
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