American Constitutionalism: From Theory to Politics.

• Author: Conkle, Daniel O.

According to Professor Stephen M. Griffin, contemporary constitutional theory has focused too narrowly on the Supreme Court's elaboration of constitutional law and, in so doing, it has neglected the political dimension of American constitutionalism. Griffin suggests that the most important task of constitutional theory is to explain the process by which the meaning of the Constitution has evolved over time, but he argues that the Supreme Court's role in this process has been greatly exaggerated. Griffin's response is to seek "a theory of constitutional change that will situate the Constitution in the continuous flow of American political development."(3 (p. 7)

Griffin begins by recounting the emergence of judicial review, through which "the Constitution was legalized" (p. 17) by treating it much like other forms of law. This "legalization of the Constitution" (p. 18) made it enforceable by the courts, but only to a limited extent, since the judiciary's institutional limitations prevented the courts from giving fun effect to the Constitution's many values. As a result, legalization left "large areas of the constitutional order subject to ordinary political change," (p. 18) a situation that continues to prevail today. Although outside the domain of "the legalized Constitution," (p. 18) however, these areas remain a part of the Constitution itself, understood more broadly as "a text-based institutional practice." (p. 56)

Court's elaboration of constitutional law and, in so doing, it has neglected the political dimension of American constitutionalism. Griffin suggests that the most important task of constitutional theory is to explain the process by which the meaning of the Constitution has evolved over time, but he argues that the Supreme Court's role in this process has been greatly exaggerated. Griffin's response is to seek "a theory of constitutional change that will situate the Constitution in the continuous flow of American political development."3 (p. 7)

Griffin begins by recounting the emergence of judicial review, through which "the Constitution was legalized" (p. 17) by treating it much like other forms of law. This "legalization of the Constitution" (p. 18) made it enforceable by the courts, but only to a limited extent, since the judiciary's institutional limitations prevented the courts from giving fun effect to the Constitution's many values. As a result, legalization left "large areas of the constitutional order subject to ordinary political change," (p. 18) a situation that continues to prevail today. Although outside the domain of "the legalized Constitution," (p. 18) however, these areas remain a part of the Constitution itself, understood more broadly as "a text-based institutional practice." (p. 56)

Because the Constitution, on this understanding, includes non-legal as well as legal dimensions, constitutional change can occur not only...