Document Type

Article

Publication Date

2023

Abstract

At the present moment, the greatest threat to our constitutional democracy, and perhaps to our survival as a nation, is the autocratic aspiration of a President who claims to have been saved by God to institute a new era of American imperialism and interplanetary manifest destiny. It might seem in this context, with a President issuing executive orders that aggressively invite constitutional challenge, and a Vice-President who has advocated that the President should ignore Supreme Court rulings he deems illegitimate, that arguments about constitutional legal theory could only be of theoretical interest. That would be true if our constitution were at the most fundamental level a set of rules, and questions of constitutional legality were ultimately technical legal questions of interpretation and application, best left to the professionals. Our current crisis presents us with an opportunity to shake off this dangerously passive and deeply mistaken view of ‘our Constitution.’ This Article argues that we must stop thinking of ourselves as consumers of rights, granted to us by god and our founding documents, and the courts as the final authoritative determiners of the rights bequeathed upon us by history. We must come to recognize that no one gives us our rights except ourselves acting as a self-governing political community, and that the legitimacy of our constitutional authority as a people depends upon our continuing struggle as a people to realize equality before the law. No real reform of our legal and political institutions will be possible without a more fundamental reformation in our understanding, as citizens, of the relation between constitutional legitimacy and democratic self-rule. We need to ask anew the question “What is the law?”

This Article presents a novel theory of fundamental or constitutional law, a theory which both helps to make sense of our current crisis in democratic constitutional self-governance and, we hope, can help inform strategies for responding to that crisis. We frame our account through a critique of “public meaning originalism,” the theory of legal interpretation espoused by conservative members of the Supreme Court. We show how the Roberts Court’s putative ‘textualism’ exemplifies in a radical way the dangers of the prevailing understanding of legitimate constitutional authority, both inside and outside the legal academy. This view is known in legal theory as “legal positivism.” In its standard form, legal positivism grounds the existence of constitutional law on the authoritative interpretation by legal officials (e.g., the Supreme Court) of authoritative source materials (e.g., the US Constitutional document), while also holding that the practices of those same legal officials are the grounds of both the ultimate standards of correct constitutional interpretation and of the choice of which sources count as authoritative. Very little imagination should be required to see how this account of constitutional legitimacy, which identifies fundamental law with whatever the most authoritative legal officials deem in practice to be fundamental law, could be used to justify unprecedented assertions of political power. Both the Roberts Court’s recent rulings and the President’s executive orders have relieved us of even that meager amount of imaginative work and have underscored the need for an alternative account of fundamental or constitutional law.

This Article argues that this now dominant, highly theoretical, understanding of the law’s authority represents and propagates a profound misunderstanding of what makes a constitutional legal order legitimate. A democratic constitutional order must be understood as the vehicle through which citizens enact their shared obligations to protect the individual and collective rights necessary for equal participation in democratic self-governance. Constitutional legitimacy is grounded on the real possibility of a people making use of their political and legal institutions, and their history and traditions, to reason together about the rights, duties and obligations of citizenship. Rather than abstract moral, philosophical or theological principles, constitutional principles must be understood as political principles animating the shared intention of a people to authorize a particular form of self-government. Such a shared intention can only be realized through ongoing democratic deliberation about and political inquiry into the common understanding of the political community about the scope and limits of the power of the people as sovereign over its constituent members as subjects. It is the political activity of a people, constituting themselves as a people through determining their common good, that is the ultimate foundation of constitutional law.

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