Constitutional Theory

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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 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 general theories of the Constitution. Most dramatically, neither political parties nor administrative agencies were contemplated by the designers of the Constitution, and yet any overall theory of the operation of the national government—a constitutional theory of the first sort—must somehow accommodate the importance of parties and bureaucracies.

General constitutional theory also deals with the role of the courts, though on a relatively high level of abstraction. Such theories agree that the courts exist to protect fundamental rights, but disagree primarily on the sources of those rights. One approach finds fundamental rights rooted in transcendental conceptions of rights, of the sort identified in classical theories of natural law. This approach often meets with skepticism about the existence of natural law. Another approach finds the fundamental rights enumerated in the text of the Constitution, but has difficulty dealing with what have been called the "open-ended" provisions of the Constitution, such as the ninth amendment and the privileges and immunities clauses, which appear to refer to unenumerated rights.

When general theories of the Constitution deal with the role of judicial review, they sometimes adopt varieties of the other basic type of constitutional theory, the concern of which is the justification of judicial review. Constitutional theories of this type must divide the universe of constitutional claims into those that the courts should uphold and those that they should reject. A powerful argument against a court's decision to exercise its power to invalidate legislation is that such a decision necessarily overturns the outcome of processes of majority rule that are themselves an important value in the American constitutional system. It should be noted, however, that the strength of the "countermajoritarian difficulty," as alexander m. bickel called it, can vary, depending on which government actor actually promulgated the rule in question—a city council, a state government, an administrative agency, Congress, or the President? Majoritarianism alone cannot answer the questions about judicial review. The constitutional system, though it values majority rule, does not take majority rule to be the sole value, as the Constitution's inclusion of limitations on the power of government demonstrates. If there is to be any judicial review, which seems required by the structure of the Constitution, on some occasions courts will displace the decisions of the majoritarian legislatures.

Most constitutional theories of the second type agree, however, that the courts should not simply substitute their determination of what is wise public policy for the legislature's. Not only do courts often lack the competence that legislatures have in developing information about social problems and possible methods of responding to those problems, but, more to the point, the countermajoritarian implications of such freewheeling exercises of the power of judicial review are, for most, unacceptable in the American constitutional system. Theories of this type therefore set themselves two tasks: they must specify when and why courts can invalidate legislation, and when and why they cannot.

Modern constitutional theories of this type fall into several basic groups, though many variants have been offered:

1. originalism insists that the courts should invalidate legislation only when the legislation is inconsistent with provisions of the Constitution as those provisions were intended to be applied by their authors. This theory might significantly limit the power of courts if, as most of its proponents believe, the Framers of the Constitution did not intend to place substantial limits on government's powers. The theory is vulnerable on a number of grounds. For some provisions, the evidence is at least mixed, sometimes suggesting that the Framers did indeed intend to limit government power a great deal. Originalist theories, because they seem to be primarily concerned about imposing limits on judicial discretion, have difficulty dealing with the kinds of ambiguities about intentions that historical inquiry almost invariably generates. The framers of the fourteenth amendment, for example, were a coalition of Radical Republicans, who desired substantial changes in the overall operation of government with respect to individual rights, and more conservative Republicans, who wanted to preserve a substantial amount of state autonomy in that area. Whose intentions are to control in interpreting the amendment? In addition, technological change presents society with innovations that could not have been within the contemplation of the Framers, and social change sometimes means not only that contemporary values are different from those of the Framers of the Constitution but also that the meaning of practices with which they were familiar has changed so much that it is unclear why contemporary society ought to respond to those practices as the authors intended. wiretapping, a practice that clearly has something to do with the values protected by the fourth amendment but which is significantly different from the practices the Framers actually contemplated, is an example of the first problem. The second problem is illustrated by the changed role of public schools between 1868, when the Framers of the Fourteenth Amendment foresaw little impact on segregation of public schools, and 1954, when the Supreme Court held that segregated public education is unconstitutional.

2. Natural law theories rely on substantive moral principles determined by philosophical reflection on the proper scope of government in relation to individual liberty, to specify the choices that are within the range of legislative discretion and those that violate individual rights. Contemporary versions of these theories are offered by conservative libertarians, who stress the importance of private property as a domain of liberty, and by liberal supporters of the welfare state, who stress the importance of nondiscrimination and the provision of the basic necessities of life for people to be able to lead morally acceptable lives. Natural law theories often face general skepticism about the existence of the kinds of rights on which they rely, and a more specific skepticism about the ability of judges as compared to legislators to identify whatever rights there might in fact be.

3. Precedent-oriented constitutional theories rely on past decisions by the courts to guide contemporary decisions. precedents are taken to identify with sufficient clarity the kinds of choices that are to be left to legislatures. Using the ordinary techniques of legal reasoning, the courts can use precedents to determine constitutional questions that they have not faced before. Proponents of these theories argue that the techniques of legal reasoning are sufficiently constraining that courts will not be able to do whatever their policy inclinations would suggest, but are also sufficiently loose that courts will be able to respond appropriately to innovations and social change. Precedent-oriented theories face a number of problems. Many critics find it difficult to give normative value to the decisions of prior courts simply because those decisions happen to have been made; for them, just because the courts at one time "got off the track" is no reason to continue on an erroneous course. Other critics are skeptical about these theories' claims regarding the degree to which precedent actually constrains judges. Influenced by the American legal realists, they argue that the accepted techniques of legal reasoning are so flexible that judges can choose policies they prefer and disguise those choices as dictated by, or at least consistent with, prior decisions.

4. Process-oriented theories attempt to minimize the countermajoritarian difficulty by pressing judicial review into the service of majority rule. They do so by identifying obstacles that make the government less than truly majoritarian. For theories of this sort, the democratic process is bound to malfunction when some people are excluded from the franchise, so that majoritarian legislatures can freely disregard their views. Similar problems arise when rights of expression are limited, so that supporters of certain positions are punished for advocating their adoption; majoritarian legislatures would not learn what these people actually prefer, and the outcome of the political process would therefore be distorted. Process-oriented theories have also dealt with questions of discrimination, which they typically treat as arising from situations in which, though there is no formal disfranchisement, prejudice leads legislators systematically to undervalue the true wishes of their constituencies taken as a whole, that is, including the victims of prejudice.

Critics of process-oriented theories point to limitations that the Constitution places on government that, though perhaps explicable in terms of preserving a majoritarian process, somehow seem devalued when treated solely in process terms; the thirteenth amendment ban on slavery is a notable example, as is the body of constitutional privacy law that the Supreme Court has developed. Other critics suggest that process-oriented theories, while purporting to serve majoritarian goals, actually subvert them, because the theories are loose enough to allow judges to identify so many obstacles in the processes of majority rule that they can use process-oriented theories to serve their own political goals. A libertarian process theory, for example, might rely on the economic theory of public choice to argue that the courts should be much more active in invalidating social and economic legislation because the beneficiaries of such laws tend to be concentrated interest groups that can readily organize and lobby for their interests, while the costs of the laws are borne by consumers and taxpayers who, because no individual has much at stake, are systematically underorganized in the political process. A social welfare process theory, in contrast, would argue that poor people are at a systematic disadvantage in the political process because they have insufficient income, compared to wealthier people, to devote to political activity; such a theory would suggest that the courts should invalidate restrictions on the provision of public assistance, and should uphold—and perhaps even require—limitations on contributions to political campaigns.

5. The final group of theories of judicial review focuses less on the limits that courts should face in deciding individual cases and more on the practical political limits the courts actually do face in exercising the power of judicial review. These theories stress that the courts are part of the general political process and can be constrained by the actions of the other branches. Some of these theories emphasize the formal limitations on judicial power built into the Constitution, such as Congress's ability to restrict the jurisdiction of the courts, its power to impeach judges, and the public's power to amend the Constitution. These formal limitations have rarely been invoked successfully where Congress or the public has simply disagreed with the results the judges have reached. Another mechanism built into the Constitution, the power to replace judges who resign or die in office with judges sympathetic to the political program of current political majorities, has been more effective in the long run. Replacement of judges in the ordinary way has often shifted the general tenor of the courts, though no one can guarantee that this mechanism will succeed in overturning any particular decision, such as the Supreme Court's abortion decision in 1973.

Other versions of this type of theory note that the courts have only infrequently succeeded in imposing their agenda on the public without having some substantial support in the political branches. In short, these theorists argue that the courts cannot get away with very much; the countermajoritarian difficulty, though real, has been exaggerated. Further, in this view, the courts have a limited amount of "political capital": they can invest their capital in decisions designed to enhance their reputation, either by invalidating unpopular laws that somehow have survived in the political process or by upholding popular laws, and thereby generate returns that they can use to preserve their public support when they invalidate genuinely popular statutes. These types of constitutional theory seem to pay attention to the realities of the operation of politics, but they are often too informal in their understanding of politics to be fully persuasive, and in any event, they fail to capture the important normative dimensions of most discussions of constitutional law.

Mark Tushnet

(see also: Conservatism; Constitutional Interpretation; Critical Legal Studies; Deconstructionism; Interpretivism; Jurisprudence and Constitutional Law; Law and Economics Theory; Legal Fictions; Liberal Constitutional Construction; Liberalism; Noninterpretivism; Political Philosophy of the Constitution.)


Bickel, Alexander 1962 The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Indianapolis, Ind.: Bobbs-Merrill.

Ely, John Hart 1980 Democracy and Distrust. Cambridge, Mass.: Harvard University Press.

Tushnet, Mark 1988 Red, White, and Blue: A Critical Analysis of Constitutional Law. Cambridge, Mass.: Harvard University Press.

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Constitutional Theory

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Constitutional Theory