Thursday, April 16, 2015

Constitutional Interpretation and Change in the United States: The Official and the Unofficial


I have just posted a draft of my latest essay, Constitutional Interpretation and Change in the United States: The Official and the Unofficial, on SSRN. Here is the abstract:

This lecture, given at the Institut Villey in Paris, describes the processes of constitutional change in the American political and legal system.

The first part of the lecture briefly summarizes the theory of framework originalism featured in Living Originalism.

The second part of the lecture explains how the American constitutional system actually changes in practice, emphasizing two kinds of contributions to constitutional development. The first are the official contributions of laws and judicial doctrines. The second are the unofficial contributions of political parties and civil society, expressed through political mobilization, social influence, and cultural change.

American constitutional development features a dialectic of legitimation. Efforts by the political branches to build out state functions, and efforts by civil society groups to make constitutional claims spur constitutional controversies. These controversies, in turn, may generate judicial doctrine that legitimates or holds illegitimate what political actors have done. Even when courts strike down particular laws or practices, their decisions may lead to other pathways for achieving political goals that will later be declared legitimate.

The dialectic of legitimation explains the point of judicial review in the American constitutional system. Judicial review does not simply constrain or limit state power; rather judicial review legitimates, shapes and redirects political power. Indeed, modern democracies with judicial review are able to project power in ways that earlier states could never have imagined.

The third part of the lecture explains why American constitutional theory appears to feature an opposition between living constitutionalism and originalism, an opposition which is actually illusory. Both calls for a return to original meaning and assertions that Americans have a living constitution are responses to the same phenomenon—the recognition that the world that produced the ancient constitution has dissolved. This is the experience of constitutional modernity.

Constitutional modernity generates equal and opposite responses, which have been offered by both liberals and conservatives in the twentieth and twenty-first centuries-- the need to cleave to the past and its symbols and concrete manifestations, and the need to transcend the past through pragmatic adaptation to a changed world.

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