The civic dimensions of American constitutionalism.

• Author: Thomas, George

THE CIVIC CONSTITUTION: CIVIC VISIONS AND STRUGGLES IN THE PATH TOWARD CONSTITUTIONAL DEMOCRACY. By Elizabeth Beaumont. (1) Oxford University Press. 2014. Pp. xvi + 343. $49.95.

PEOPLING THE CONSTITUTION. John E. Finn. (2) University Press of Kansas, 2014. Pp. xv + 350. $39.95.

The American Constitution begins by pronouncing itself an act of "We the People" and derives its legitimacy from its ratification by the people. And yet the people rarely appear in the body of the Constitution and citizenship goes largely unmentioned. The perplexing place of the people within the constitutional scheme is reflected in its closing article. For while the Preamble begins as an act of the people, Article VII closes by stating that the Constitution will be "established" once the conventions of nine states have ratified it. Whether this would be an act of the people directly, or whether it would occur by way of the existing state legislatures, was left for the states to decide (and, perhaps, to the people within them). The fact that the people themselves are largely unmentioned in the Constitution does not necessarily mean they were neglected. The same cannot be said about constitutional scholarship, where citizens have long been neglected. Even in studies that putatively focus on the people, such as Larry Kramer's The People Themselves and Bruce Ackerman's three volume We the People, the people are not, in fact, the central focus. (4)

Elizabeth Beaumont's The Civic Constitution and John Finn's Peopling the Constitution, coincidentally but happily coming out at the same time, speak to the central importance of citizens in creating and maintaining the American Constitution. Yet far more than simply filling in the gaps and seeking to illuminate the place of the people in the constitutional order, these works give us a deeper understanding of American constitutionalism and speak to the very nature of the constitutional enterprise. Both Beaumont and Finn argue for a civic understanding of the Constitution. As Finn describes it, the Civic Constitution's primary ambition "is to constitute a political community in which citizens shoulder a significant part of the responsibility for achieving and maintaining a constitutional way of life" (p. 1). This is in contrast to what Finn describes as the Juridic Constitution, which he prefers to "legal," as "juridic" better captures the fact that judges and lawyers not only bear the primary responsibility for maintaining the Constitution, but that such an understanding comes at the expense of a more robust civic sense of the Constitution. Beaumont's book complements this understanding by illuminating how "civic founders" have played an important role in shaping constitutional meaning and understandings, including constitutional text and membership in the civic community, which has been an important part of building constitutional democracy in America (p. 7). I treat these works together as offering us an understanding of The Civic Constitution from both a theoretical and historical perspective, but I should be clear that they are not always in agreement; indeed, at times they are in marked tension with one another.

In this essay, I first take up what it means to view the Constitution in civic terms. I then focus on questions of constitutional foundations, change, and development from a civic perspective. I conclude by briefly speaking to the importance of civic education that both of these works point to as an essential, and deeply neglected, feature of maintaining the American Constitution.

THE CIVIC CONSTITUTION

To apprehend the Constitution in civic terms is an attempt to understand the Constitution as a whole, or from a synoptic point of view; it is an effort to understand the kind of polity the Constitution brings into being, which includes things that are part of the Constitution--civil society and political culture, for example--but are not always clearly associated with it. Such an understanding places the text of the Constitution within the whole of the American constitutional order. This is not to neglect the text. On the contrary, the text itself begins as an act of the people, but this act of the people is an attempt to constitute a particular...