Constitutional Theory

• Author: Mark Tushnet
• Pages: 654-657

Page 654

The term "constitutional theory" refers to two aspects of constitutional law. First, it refers to general theories of the Constitution, which deal with the overall structure of the government, the relations among the branches, and the relation between the national and state governments. Second, it refers to theories of JUDICIAL REVIEW, which provide justifications for the occasions on which the courts, ruling on constitutional issues, will and will not displace the judgments of elected officials.

General theories of the Constitution consider the structure of the government as defined in the Constitution and, more important, as the institutions of the government have developed historically. The primary subjects of this sort of constitutional theory are the SEPARATION OF POWERS of the three branches of the national government, and FEDERALISM, or the division of authority between the national government and state governments. Constitutional theories of this sort attempt to explain how the institutional arrangements of the United States government promote the public interest by allowing the adoption of socially beneficial legislation that does not threaten FUNDAMENTAL RIGHTS.

Theories of the separation of powers fall into two basic groups. In one, the primary concern is the separateness of the branches of the national government. Within this version of constitutional theory, problems arise when one branch begins to assume duties historically performed by another branch. The LEGISLATIVE VETO, invalidated in IMMIGRATION AND NATURALIZATION SERVICE V. CHADHA (1983), offers an example. In the other version, the emphasis is on CHECKS AND BALANCES, and so the legislative veto is treated as a useful innovation to deal with problems of legislative control of executive actions in a government much larger than it was when created in 1789.

In general, checks and balances theories are more receptive to institutional innovations than separation of powers theories. Innovations tend to be seen as democratically chosen devices by which the executive and legislative branches respond to the demands for expansive substantive action generated by the political process; the public asks that the government expand its activity in the provision

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of social welfare or in international affairs, and the government responds first by acting to satisfy those demands and then, finding that either Congress or the President has grown too powerful, by developing new institutions like the legislative veto to check the branch that seems more threatening.

Yet, if checks and balances theories allow for institutional innovation and therefore for the adoption of policies that the public believes to be in its interest, they are less sensitive than separation of powers theories to the threats to fundamental freedoms that institutional innovations pose. If the original design of the Constitution carefully balanced the branches, as separation of powers theories suggest, then it is unlikely that current majorities will improve on that design.

Similar tensions pervade theories of federalism. At the outset, federalism appeared to be an important protection of democracy and social experimentation: state and local government, being closer to the people, could more readily be controlled by them than the more remote government in the national capital; and the variety of problems faced on the local level might elicit various responses, some of which would prove valuable enough to be adopted elsewhere while those that failed would do so only on a small scale. As the nation expanded, however, economic conditions appeared to require more coordinated responses than local governments could provide. As a result, federalism lost some of its value, to the point where on most issues the national government is free to act as national majorities wish, no matter how much some local governments and local majorities might object. The impairment of local democracy is apparent, yet alternative theories of federalism rely on notions of a sharp division of authority between state and nation that tend to seem quite artificial under modern circumstances.

These examples show how changes in both the scope of the national economy and the reach of the national government pose questions for...