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The Complete American Constitutionalism, Volume One - Introduction and The Colonial Era by Gillman, Howard; Graber, Mark A; Whittington, Keith E (14th May 2015)

Part One Introduction to American Constitutionalism, Five Basic Questions.

Mark A. Graber, Howard Gillman

From: The Complete American Constitutionalism, Volume One: Introduction and The Colonial Era

Howard Gillman, Mark A. Graber, Keith E. Whittington

Five Basic Questions.

American commitment to constitutionalism masks disputes over what that commitment to constitutionalism entails. Consider the controversy over Roe v. Wade (1973), the Supreme Court decision that held that the Constitution protects abortion rights. We might initially see that dispute as limited to the proper interpretation of such constitutional provisions as the due process clause of the Fourteenth Amendment. (p. 2) On closer inspection, the debate over Roe is rooted in more basic debates over the nature of constitutionalism. Persons who support that decision often speak of “a living constitution” that incorporates social and political changes. Opponents of Roe often champion “strict construction” when insisting that constitutions limit government only when constitutional provisions are interpreted in a manner consistent with their original meaning.

Five basic questions lie beneath most constitutional disputes.

  1. 1.  What is a constitution?

  2. 2.  What purposes should constitutions serve?

  3. 3.  How should constitutions be interpreted?

  4. 4.  How should constitutional disputes be resolved?

  5. 5.  How are constitutions ratified, changed, and repudiated?

American constitutional history and the experience of other constitutional democracies demonstrate that many practices that Americans now take for granted are not necessary elements of constitutional government. Federal courts presently enjoy a near monopoly on constitutional decision-making, but that preeminence is the product of a long historical struggle. Most constitutional decision-makers in the United States think the notion of an “unconstitutional constitutional amendment” is legal nonsense. Courts in India and Germany, by comparison, have declared some constitutional amendments unconstitutional. Most troubling perhaps, the conventional view that the Constitution is responsible for what is good about the United States may be wrong. Leading scholars have recently asserted that the Constitution of the United States is responsible for many ills of American society.3 Constitutional defects may even have caused the Civil War.4

Footnotes:

3.  See Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) (New York: Oxford University Press, 2006).

4.  See Mark A. Graber, Dred Scott and the Problem of Constitutional Evil (New York: Cambridge University Press, 2006).