Balkinization  

Tuesday, April 09, 2013

The American Constitution as "Our Law"

JB

I've posted a draft of my latest article, The American Constitution as "Our Law", on SSRN. Here is the abstract:

This essay, written for a symposium on Living Originalism that will appear in the Yale Journal of Law and the Humanities, considers how to apply the theory of Living Originalism to comparative constitutionalism.

Living Originalism argues that a constitution like America's must succeed simultaneously as basic law, as higher law, and as "our law"-- a constitution that Americans view “as our achievement and the product of our efforts as a people.” What could these ideas mean in a comparative context?

First, the essay discusses how the theory of framework originalism and the method of text and principle might apply to constitutions in countries outside the United States.

Second, and conversely, it argues that nothing in the notion of the Constitution as "our law" prevents comparisons to the constitutional experience of other countries as a means of understanding and affirming a distinctive American political identity. In fact, the current debate in the United States over the use of foreign legal materials in constitutional adjudication is really a struggle over American cultural identity, in which both sides are attempting to claim and reshape American constitutional culture.

Third, the essay argues that although American constitutional culture's romance with originalism is distinctive, American constitutional interpretation, like the interpretation of many post-World War II constitutions, often employs purposive interpretation that is not originalist. This helps explain how the idea of constitutional redemption--a key concept in Living Originalism and Constitutional Redemption--might operate in countries with very different histories than America's.

The remainder of the essay emphasizes that questions of interpretive theory flow from larger questions about legitimacy, constitutional faith, and constitutional redemption. The most important disagreements in constitutional theory do not concern technical questions; they concern disagreements about constitutional vision and the proper direction of the country and its trans-generational constitutional project.


Home