Constitutional ethos: liberal equality for the common good

217 Pages·2017·1.536 MB·English

by  Tsesis, Alexander

Constitutional Ethos

Constitutional Ethos
Liberal Equality for the Common Good
ALEXANDER TSESIS
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1
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Printed by Edwards Brothers Malloy, United States of America
CONTENTS
Acknowledgments ix
Introduction 1
A.  CONSTITUTION AND THEORY 4
B.  WRITTEN CONSTITUTION AND NORMS 7
C. T HEORETICAL VALIDITY 8
D.  CONSTITUTIONAL RIGHTS AND SOCIAL EQUALITY 10
E. O THER THEORIES 15
PART I SOURCES OF CONSTITUTIONAL LAW
1. Principled Constitutional Discourse 25
A. C OMPLEX SOCIETY 26
B. D ISCURSIVE PLURALISM 28
2. Declaration of Independence in Historical Relief 34
A.  IDENTIFYING FOUNDATIONAL THEORY 35
B.  PLACE IN HISTORY 36
C. A NTISLAVERY 39
D.  POPULAR GOVERNMENT AND THE COMMON GOOD 41
3. Declaration of Independence and the American Dream 46
A.  DECLARATION OF PRINCIPLE 47
B.  DECLARATION AND CONSTITUTION 49
C. E THICAL STANDARD 52
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vi Contents
D.  THE DECLARATION AND THE STRUCTURE OF GOVERNMENT 54
E.  DECLARATION OF INDEPENDENCE, CONSTITUTION, AND THE
RECONSTRUCTION AMENDMENTS 57
1.  Declaration of Independence and Constitutional Meaning 57
2.  The Wisdom of Reconstruction 58
3.  Enforcement of the Ideal 62
F. J UDICIAL ROLLBACK 67
4. The Preamble and General Welfare 68
A.  FROM DECLARATION OF INDEPENDENCE TO PREAMBLE 69
B.  PREAMBLE AS CONSTITUTIONAL GATEWAY 70
C.  THE PEOPLE OF THE UNITED STATES 76
D. P LURALISTIC FEDERALISM 77
E.  GENERAL WELFARE AND FEDERAL INVOLVEMENT IN PUBLIC PROGRAMS 80
PART II ETHOS AND MAXIMS
5. Constitutional Ethos 85
A.  CONSTITUTION AND ETHOS 86
B.  STABLE IDEAL OF GOVERNMENT 90
C.  GENERALITIES AND FACTS 93
D.  NORMS AND ASPIRATIONS 95
E.  MODALITY AND PROCEDURE 99
F.  INDIVIDUAL AND SOCIETY 101
6. Maxims and Government Power 103
A.  MAXIMS OF PUBLIC TRUST 104
B.  LIVING UP TO IDEALS 106
C.  PRINCIPLES AND PUBLIC OPINION 108
D. I NTERPRETING PRINCIPLES 109
7. Maxim of Constitutional Governance 114
A. I NTERPRETIVE CONSTRUCTION 116
B. C OLLECTIVE COOPERATION 119
C.  RIGHTS AND GENERAL WELFARE 124
D.  PERSONAL INTERESTS AND SOCIAL ENDS 130
E. P ROGRESSIVE CONSTITUTIONALISM 134
Contents vii
PART III INTERPRETIVE CONTEXTS AND APPLICATION
8. Theoretical Alternatives 141
A. O RIGINALISM 141
B. L IVING CONSTITUTIONALISM 147
C. N EUTRAL PRINCIPLES 151
D.  LIVING UP TO CONSTITUTIONAL IDEALS 155
9. Maxim Constitutionalism Today 160
A. P OLITICAL COMMUNITY 160
B.  PERSONAL HEATH AND PUBLIC WELFARE 165
C.  STATE SOVEREIGN IMMUNITY 169
D.  CONGRESSIONAL AUTHORITY AND JUDICIAL BARRIERS TO
ITS EXERCISE 172
E.  CONFLICTING RELIGIOUS LIBERTIES AND CIVIL RIGHTS 180
F. C ONCLUDING REMARKS 182
Notes 185
Index 201

ACKNOWLEDGMENTS
Every book is a journey consisting of physical and intellectual excursions. On
the physical side, the author must travel to brick- and- mortar libraries or virtual
repositories of information. On the intellectual side, many hours must be spent
alone, pondering collected research, evaluating existing arguments, working out
stylistic puzzles, developing reasoning, and so forth. Fortunately, the journey is
not entirely undertaken alone. Each author benefits from the wise counsel of
mentors, friends, relatives, and even chance acquaintances.
In the investigation, writing, and editing of this book, I have been blessed
by the abundant support of great constitutional law scholars. Their substantive
guidance has been as important as their organizational advice. Where this work
fails to achieve the standards they set, the fault is entirely mine.
I began receiving advice on the project when it was only a kernel of an
idea during a remarkably productive dinner with Lawrence Solum and Randy
Barnett. Once I put pen to paper— or more accurately fingers to keyboard—
Mark Graber, Mark Tushnet, Jack Balkin, Louis Michael Seidman, Laura
Underkuffler, and James Fleming gave me helpful advice on the proposal that
sustained me throughout the project. Andrew Koppelman, Jeff Powell, and Insa
Blanke provided me with feedback on early versions of the introduction.
I had the honor of presenting the book at the Cornell Law School, the Duke
Law School, and the University of Iowa College of Law. The hospitality I re-
ceived was exceptional and the penetrating insights were even better. While
I am grateful to all those who engaged with me at those events, I most benefitted
from the feedback of Joseph Blocher, James Boyle, Curtis Bradley, Michael Dorf,
Odette Lienau, Darrell Miller, Jens Ohlin, Todd Pettys, Aziz Rana, Neil Siegel,
Gregg Strauss, Bradley Wendell, and Ernest Young. They provided profoundly
important reactions, analyses, and suggestions.
One thing that never ceases to amaze me about academia is how many schol-
ars are incredibly generous with their time. Many extremely busy people have
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