Constitution as Aspiration

• Author: Robin West
• Pages: 662-665

Page 662

What is the point of constitutional law? What fundamental purpose does it serve? And in what sense is the Constitution law? There are at least two possible types of response to these foundational questions; one quite familiar and one less so. The cluster of familiar responses might be called the "Constitution of constraints." On this view, the purpose of the Constitution is to constrain congressional and executive lawmaking at both the state and federal level. The Constitution imposes constraints, or boundaries, on what lawmakers might otherwise be inclined to do. The Constitution is a source of law, because the point of the enterprise, thus understood, is to impose limits, enforced judicially, on what popularly elected representatives or executives might enact, on behalf of the majority they purportedly represent. And limits, interpreted and enforced judicially, is precisely what we mean by "law."

It is this view of the Constitution that has inspired the outpouring of scholarship and judicial opinions concerned with the countermajoritarian difficulty, and it is this view of the Constitution that has defined the boundaries of most contemporary constitutional argument, at least as it pertains to the BILL OF RIGHTS. For while most constitutional theorists agree that the point of constitutional law

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is to impose legal constraints on lawmakers from what they might otherwise be inclined to do, they disagree fundamentally over the content of those constraints, and over what the legislative or executive evil is toward which the Constitution is aimed. Thus, liberal constitutionalists view the Constitution's core purpose as the protection of individual rights and liberties against LEGISLATION that serves the interests of majorities but runs roughshod over core individualistic values. Conservative constitutionalists view the Constitution's core purpose as the protection of institutions and traditions that might be endangered by a popular legislature's reckless leveling or egalitarian instincts, and proceduralists or process theorists view the Constitution's core purpose as the protection of the openness and fairness of the political process itself. Although these differences are profound, their common grounding is equally significant: they all concur in their understanding of the Constitution as a "Constitution of constraints," and more particularly of legal constraints to be enforced by the judiciary on behalf of interests, traditions, values, or rights that might otherwise be trammeled by an unconstrained majoritarian process.

As familiar and widely shared as this understanding might be, one can discern in our CONSTITUTIONAL HISTORY and even in our current debates an alternative conception of what the point of constitutionalism might be, and what sense we might make of its self-declared status as "law." On this alternative view, the point of the Constitution is to declare a set of moral and political aspirations for democratic self-governance, rather than a set of judicially enforced legal constraints upon it. These constitutional aspirations, one might argue, are intended to open up and then to guide, rather than constrain, political debate and legislative decisionmaking. They constitute a set of ideals for a DELIBERATIVE DEMOCRACY which the legislative and executive branches ought to aim for. They constitute law, but not in the adjudicative and judge-focused sense meant by the LEGAL REALISTS; rather, they constitute law in the sense often embraced by eighteenth-century natural lawyers: aspirations or ideals meant to guide the hand of the lawmaker. These ideals, or constitutional aspirations, are then realized not only or even primarily through judicial decisions that invalidate legislation, but rather...