A New Introduction to American Constitutionalism

307 Pages·2013·1.898 MB·English

by  Mark A. Graber

A New Introduction to
American Constitutionalism
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A New Introduction
to American
Constitutionalism
MARK A.   GRABER
1
1
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Library of Congress Cataloging-in-Publication Data
Graber, Mark A.
A new introduction to American constitutionalism / Mark A. Graber.
pages cm
Includes bibliographical references and index.
ISBN 978–0–19–994388–3 (alk. paper)
1. Constitutional law—United States. I. Title.
KF4550.G725 2013
342.73—dc23
2013011813
1 3 5 7 9 8 6 4 2
Printed in the United States of America
on acid-free paper
For Howard and Keith:
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CONTENTS
Preface i x
1. Introduction to American Constitutionalism
1
1. BASIC CONSTITUTIONAL QUESTIONS 1
2. IDENTIFYING BASIC CONSTITUTIONAL QUESTIONS 4
3. THINKING ABOUT BASIC CONSTITUTIONAL QUESTIONS 10
2. What Is a Constitution?
14
1. CLASSICAL CONSTITUTIONALISM 16
2. MODERN CONSTITUTIONALISM 2 4
3. CONTEMPORA RY CONSTITUTIONALISM 3 7
3. Constitutional Purposes
40
1. CONSTITUTIONALISM AND DEMOCRA CY: THE DEAD HAND PROBLEM 42
2. BASIC CONSTITUTIONAL PURPOSES 44
3. AMERICAN CONSTITUTIONAL PURPOSES 60
4. THE VIRTUES (AND VICES) OF CONSTITUTIONALISM 63
4. Constitutional Interpretation
65
1. THE LIVING CONSTITUTION AND ITS DISCONTENTS 67
2. CONSTITUTIONAL ARGUMENTS 71
3. CONSTITUTIONAL INTERPRETATION AND CONSTITUTIONAL PURPOSES 87
4. THE POLITICS OF CONSTITUTIONAL ARGUMENT 88
vii
viii Contents
5. Constitutional Authority
100
1. THE COUNTERMAJORITARIAN DIFFICULTY, JUDICIAL ACTIVISM, AND
JUDICIAL RESTRA INT 1 04
2. ALLOCATING CONSTITUTIONAL AUTHORITY 110
3. SHARING CONSTITUTIONAL AUTHORITY 121
4. THE POLITICS OF SHARED CONSTITUTIONAL AUTHORITY 129
5. SHARED CONSTITUTIONAL AUTHORITY AS POLITICS, LAW, AND
CONSTITUTIONALISM 1 36
6. Constitutional Change
140
1. FORMAL CONSTITUTIONAL CHANGE 144
2. SEMIFORMAL CONSTITUTIONAL CHANGE 160
3. INFORMAL CONSTITUTIONAL CHANGE 169
4. THE LAW AND POLITICS OF CONSTITUTIONAL CHANGE 172
7. American Constitutionalism in Global Perspective
174
1. FOREIGN POLICY: TWO CONSTITUTIONS? 175
2. COMPARA TIVE CONSTITUTIONALISM: UNIVERSAL OR PARTICULAR 1 81
3. A HIGHER AUTHORITY? INTERNATIONAL LAW AND THE
CONSTITUTION 199
4. THE PARTICULAR AND UNIVERSAL REVISITED 208
8. How Constitutions Work
212
1. OF CHEESEBURGERS AND CONSTITUTIONS 212
2. CONSTITUTIONS AS CONSTRA INING POLITICS 215
3. CONSTITUTIONS AS CONSTRUCTING POLITICS 219
4. CONSTITUTIONS AS CONSTITUTING POLITICS 231
5. THE SELF-ENFORCING CONSTITUTION 242
6. WHEN CONSTITUTIONS DO NOT WORK 243
7. ONE LAST CRISIS 2 48
Notes 251
Cases 275
Index 279
PREFACE
“You remember each other,” the elderly hostess in the fi rst scene of the roman-
tic comedy declares. Miriam and Daniel are temporarily speechless. Daniel
remembers a scrawny tomboy who regularly pelted her brother’s friends with
snowballs. Before him is a shapely premedical student at a major state university.
Miriam remembers a gawky nerd whose conversation was exhausted by the lat-
est video games. Before her is a dashing political science major. Sparks will fl y as
Miriam and David are reintroduced.
Americans need a similar reintroduction to their constitutional order.
American constitutionalism is more complex and interesting than the fragments
citizens are exposed to in their youth. Th e Constitution most students remem-
ber from high school civics consists entirely of limits on government action
enforced by the Supreme Court. Constitutional debate is restricted to whether
states may ban abortion (updated to whether same-sex couples have a constitu-
tional right to marry), when the president may constitutionally send troops into
foreign combat, and other matt ers of constitutional law. Some students learn the
constitutional facts of life from a legalist who insists that constitutional adjudica-
tion must be separated from ordinary politics. Others are taught by behaviorally
oriented social scientists who repeatedly describe this distinction between law
and politics as a childlike fairy tale. Neither perspective fully encompasses cru-
cial elements of the American constitutional order.
Proper introductions to a mature American constitutionalism begin by
exploring diff erent theories about the nature and purposes of constitutions,
with particular emphasis on the nature and purpose of the Constitution of the
United States. Students then become acquainted with diff erent approaches for
determining the meaning of constitutional provisions, allocating constitutional
authority, and bringing about legitimate constitutional change. Educated citi-
zens acquire a global perspective on the American constitutional order by famil-
iarizing themselves with the distinctive constitutional issues raised by foreign
ix