Premodern constitutionalism.

• Author: Redish, Martin H.
• Position: Abstract through II. The Modernist Departures from the Traditionalist Position A. "Against the Constitution as Our Unique Supreme Law" - Constitutional Realism and the Extracanonical Constitution, p. 1825-1870

ABSTRACT

The traditional concept of American constitutionalism has long been a basic assumption not subject to tremendous examination. For generations, scholars have understood our Constitution to be the byproduct of a revolutionary war fought for representation and a founding generation concerned with preventing tyranny in any form. The traditional understanding of American constitutionalism thus consists of two elements: the underlying principle of skeptical optimism, which can be found in the historical context within which the Framers gathered to draft the Constitution, and the political apparatus effectuating that idea--countermajoritarian constraint set against majoritarian power--which reveals itself through reverse engineering from the structural Constitution.

Over the last few decades, two sets of modernist scholars have attacked the activating devices that deploy the traditional vision of American constitutionalism. "Constitutional realists" do not claim to dispute the animating purpose of American constitutional governance, but they claim that the complete American Constitution is represented by more than just the entrenched written document. "Departmentalists" and "popular constitutionalists" also claim to accept the animating purpose of American constitutionalism, but they also claim that the written Constitution forbids judicial supremacy, or at least that it is neither constitutionally required nor normatively desirable.

Neither group acknowledges the other, presumably because they assume they are attacking entirely different aspects of our constitutional structure. But by exposing the fundamental flaws of these two theories and how they irremediably contradict the underlying principle and apparatus, this Article shows modernist attacks on the two primary activating devices of our constitutional government--the singular written document and its prophylactic, insulated judicial interpreter--are attacks on American constitutionalism itself. We therefore develop a more complete, revamped theoretical explanation of traditional constitutionalism that incorporates this understanding. "Premodern constitutionalism" understands that the core of American constitutionalism has a tripartite theoretical foundation. It is the principle of skeptical optimism as well as the political apparatus of countermajoritarian constraint of majoritarian power structures, which implements the principle. And it is the two key structural elements necessary to activate the political apparatus--an entrenched written constitution and a prophylactic, insulated judiciary empowered to interpret it.

TABLE OF CONTENTS INTRODUCTION I. TRADITIONALIST CONSTITUTIONALISM REVISITED: STRUCTURAL CHOICES WITH HISTORICAL EXPLANATIONS A. The Core Principle: Skeptical Optimism B. The Apparatus: Countermajoritarian Checking of Majoritarian Power II. THE MODERNIST DEPARTURES FROM THE TRADITIONALIST POSITION A. "Against the Constitution as Our Unique Supreme Law"--Constitutional Realism and the Extracanonical Constitution B. "Against the Ultimate Counter majoritarian Check of Judicial Supremacy"--Departmentalism and Popular Constitutionalism 1. Departmentalism: A Historical and Doctrinal Argumer Against Judicial Supremacy 2. Popular Constitutionalism: A Normative Attack on Judicial Supremacy III. FASHIONING THE THEORY OF PREMODERN CONSTITUTIONALISM IV. THE FUNDAMENTAL GAP BETWEEN AMERICAN CONSTITUTIONALISM AND "UNWRITTEN" OR "INSUFFICIENTLY COUNTERMAJORITARIAN" CONSTITUTIONS A. Unwritten Constitutions B. Insufficiently Counter majoritarian Constitutions CONCLUSION INTRODUCTION

When we embark on the task of answering constitutional questions or teaching constitutional law, most of us start from the sensible position that our Constitution is interpretable positive law whose dictates must be respected. This requires us to accept three basic premises: first, that the written document is our supreme positive law; second, that the judiciary is empowered to interpret it; and third, that the judiciary's interpretation represents the final word as to its meaning. We must start from here; otherwise, there would be no purpose to engaging in the study of our founding document and the rules of governmental ordering that it sets forth, nor could we place any faith in the study of Supreme Court case law defining and demarcating the boundaries of federal power contained within our Constitution. Upon this foundation, we have built entire worlds of doctrine and constitutional theory.

It may come as something of a surprise, then, that a number of highly respected constitutional scholars have, in recent years, sought to undermine these premises. (1) We call these scholars "modernists" because they remind us of the architectural modernists who defiantly spurned tradition in favor of naked--and aesthetically displeasing--functionalism in the early twentieth century. (2) Architectural modernism was known for its determined rejection of history and tradition, free from the "idealization and imitation of some past era." (3) It disclaimed ornamentation and symbolism, which for centuries had been rightly understood as central to architecture's identity as a practice of aesthetic--a practical and necessary craft of urban design that was also, at its roots, steeped in artistry. (4)

Similarly, two sets of modernist constitutional commentators have proposed theories that reject the long-accepted tradition of American constitutionalism on the basis of different forms of naked functionalism. In one camp, self-described "constitutional realists" have variously claimed different positions on one basic assertion: that constitutions are composed of those laws, norms, and practices that principally define the relationship between the people and their government and set forth a nation-state's power structure. As such, they argue, the American Constitution is simultaneously more and less than the piece of parchment upon which the Framers scribed our supreme law in the late eighteenth century. It is less, insofar as some provisions of the Constitution are neither respected nor closely followed, and have thus been effectively written out of the Constitution by oversight or indignity. It is more, insofar as other laws and movements--powerful and meaningful ones that the American public views as fundamental to our relationship with our government, but have never been codified in the document--are nonetheless appropriately deemed to possess constitutional status. Surely no one can dispute, for example, that on a purely practical level the Civil Rights Act of 1964 has had a more profound impact on social and governmental ordering in the United States than, say, the Third Amendment (5) or the Emoluments Clause. (6)

Also in the contrarian modernist camp are those scholars who, while not denying the unique supremacy of the Constitution, nevertheless challenge the premise that our constitutional regime provides for a judiciary that is uniquely empowered and specially equipped to serve as the final arbiter of constitutional interpretation. Whether by legal or originalist argument, (7) or by observational or normative means, (8) these "departmentalists" and "popular constitutionalists" contend that the constitutional democracy the Framers devised was not built to support effective, enforceable judicial review. Departmentalists make the descriptive originalist argument that the Constitution envisioned all three branches as possessing equivalent power, and that allowing the judiciary's interpretation of the Constitution to bind the other two branches upsets the balance of coequal power. (9) Popular constitutionalists, on the other hand, make the normative argument that judicial supremacy is deleterious to the democratic vision of American constitutionalism. (10) Observing that judicial review and supremacy were not explicitly provided for in the Constitution, and that courts often act in concert with majority views despite their freedom from democratic oversight, these scholars understand our constitutional system to accept majoritarian authority over constitutional meaning and enforcement. (11)

This is uncharted territory to be sure; constitutional realists, departmentalists, and popular constitutionalists are nothing if not innovative. But there is, we believe, a reason that this territory has remained uncharted for so long: those who would depart from the premises that have long served to undergird American constitutional law fundamentally misunderstand the unique virtues of American constitutionalism. Our Constitution was specially designed with an eye toward protecting the American people against tyranny in all its possible forms, including majoritarianism. Theories that either obscure the nature of the Constitution or misunderstand its structural guarantee undermine America's most meaningful and significant contribution to political theory. This Article urges a return to a sort of traditionalism that uniquely understands that our Constitution (1) was written down, (2) in a single place, (3) to enshrine a constitutional democracy that would effectively balance our competing interests in celebrating majority interests with the need to protect minority rights.

The traditionalist view of American constitutionalism, however, was a premise rather than a reasoned conclusion. Literature explicating the traditionalist view is sparse because it has always gone without saying that our Constitution was ... well, our Constitution. But if we are to ask the question, "What is the American Constitution?," we will find the answer by examining how our Constitution came to be, and why the government was formed in the way that it was formed. What were the Constitution's causes, and what were its aims?

This ought not be an "originalist" inquiry, in which we seek to discern original intent or original meaning purely by way of excavation and historical research. An originalist inquiry inherently...