Constitutional theory
Encyclopedia
Constitutional theory is an area of constitutional law
that focuses on the underpinnings of constitutional government. It overlaps with legal theory, constitutionalism
, philosophy of law and democratic theory. It is not limited by country or jurisdiction.
is an academic discipline
that focuses on the meaning of the United States Constitution
. Its concerns include (but are not limited to) the historical, linguistic
, sociological, ethical, and political.
Much of constitutional theory is concerned with theories of judicial review
. This is in part because Marbury v. Madison
, which established this judicial power in the early 19th century, has given the judiciary near-final authority on constitutional meaning.
Aside from judicial review, constitutional theory in general seeks to ask and answer the following questions:
's The Least Dangerous Branch. (The title is an allusion to The Federalist, in which Alexander Hamilton
wrote that the judiciary was the least dangerous of the three branches because it had neither the sword (like the Executive) nor the purse (like the Legislature). The book's primary (but not sole) contribution was to introduce the idea of the "countermajoritarian difficulty
." The idea expressed by the term countermajoritarian difficulty is that there is a tension between democratic government (as he defines it democratic government is majoritarian government) and judicial power. If the judiciary—an unelected branch of government—can overturn popular legislation, then either there is a fundamental contradiction within the democratic system, or there is a tension that must be resolved by curbing judicial power. (One of Bickel's solutions is for the Court to exercise "the passive virtues": that is, to decline to decide more than it has to decide.)
(1724–1804) after US and French constitutions were adopted in the late 18th century. Kant’s approach is based on the supremacy of a country’s written constitution
. This supremacy must create guarantees for implementation of his central idea: a permanent peaceful life as a basic condition for the happiness of its people and their prosperity. Kant was basing his doctrine on none other but constitutionalism
and constitutional government.
Kant had thus formulated the main problem of constitutionalism, “The constitution of a state
is eventually based on the morals of its citizens, which, in its turns, is based on the goodness of this constitution.” Kant’s idea is the foundation for the constitutional theory of the twenty-first century. The Legal state concept is based on the ideas, discovered by Immanuel Kant, for example, in his Groundwork of the Metaphysic of Morals:
“The task of establishing a universal and permanent peaceful life is not only a part of theory of law within the framework of pure reason, but per se an absolute and ultimate goal. To achieve this goal, a state must become the community of a large number of people, living provided with legislative guarantees of their property rights secured by a common constitution. The supremacy of this constitution… must be derived a priori from the considerations for achievement of the absolute ideal in the most just and fair organization of people’s life under the aegis of public law.” . The Russian legal system, borne out of transformations in the 19th Century under the reforms of Emperor Alexander II, is based primarily upon the German legal tradition. It was from here that Russia borrowed a doctrine of Rechtsstaat, which literally translates as Legal State. The English most close analogue is «rule of law» . Rechtsstaat is a concept in continental European legal thinking, originally borrowed from German legal philosophy, which can be translated as “legal state” or "state of law", or "state of rights", "constitutional state" in which the exercise of governmental power is constrained by the law. The Russian Legal state concept adopts the written constitution as a supreme law of the country (the rule of constitution).. The concept of “legal state” (“pravovoe gosudarstvo” in Russian) is a fundamental, but undefined, principle that appears in the very first dispositive provision of Russia’s post-Communist constitution: “The Russian Federation – Russia – constitutes a democratic federative legal state with a republican form of governance.” Similarly, the very first dispositive provision of Ukraine’s Constitution declares: “Ukraine is a sovereign and independent, democratic, social, legal state.” The effort to give meaning to definition “Legal State” is anything but theoretical.
President of the Constitutional Court of Russia Valery Zorkin wrote in 2003:
“Becoming a legal state has long been our ultimate goal, and we have
certainly made serious progress in this direction over the past several years.
However, no one can say now that we have reached this destination.
Such a Legal state simply cannot exist without a lawful and
just society. Here, as in no other sphere of our life, the state reflects the level
of maturity reached by society.".
Russian concept of Legal state adopted many segments of the constitutional economics
. One of the founders of constitutional economics James M. Buchanan
, the 1986 recipient of the Nobel Memorial Prize in Economic Science argues that in the framework of constitutional government any governmental intervention and regulation have been based on three assumptions. First, every failure of the market economy
to function smoothly and perfectly can be corrected by governmental intervention. Second, those holding political office and manning the bureaucracies are altruistic upholders of the public interest, unconcerned with their own personal economic well-being. And, third, changing the responsibilities of government
towards more intervention and control will not profoundly and perversely affect the social and economic life.
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
that focuses on the underpinnings of constitutional government. It overlaps with legal theory, constitutionalism
Constitutionalism
Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
, philosophy of law and democratic theory. It is not limited by country or jurisdiction.
Overview of Constitutional Theory in the United States
Constitutional theory in the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
is an academic discipline
Discipline
In its original sense, discipline is referred to systematic instruction given to disciples to train them as students in a craft or trade, or to follow a particular code of conduct or "order". Often, the phrase "to discipline" carries a negative connotation. This is because enforcement of order –...
that focuses on the meaning of the United States Constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
. Its concerns include (but are not limited to) the historical, linguistic
Linguistics
Linguistics is the scientific study of human language. Linguistics can be broadly broken into three categories or subfields of study: language form, language meaning, and language in context....
, sociological, ethical, and political.
Much of constitutional theory is concerned with theories of judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
. This is in part because Marbury v. Madison
Marbury v. Madison
Marbury v. Madison, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring...
, which established this judicial power in the early 19th century, has given the judiciary near-final authority on constitutional meaning.
Aside from judicial review, constitutional theory in general seeks to ask and answer the following questions:
- How should the Constitution be interpreted?
- How much weight should be given to the history of the Constitution's framing?
- How much, if any, of the Constitution's meaning can be read as implicit in the text?
- What vision of republican government does the Constitution seek to further?
- How does constitutional meaning shift with other changes in the political structure?
- How does constitutional meaning shift with changes in cultural norms?
- What is the proper relationship between individual rights and state power?
- What is the proper relationship between the branches of government
- This question involves the power of judicial review, noted above
- What is the proper relationship between the federal government and the states?
History of Constitutional Theory in the United States
Although constitutional theory as a discipline has its precursors in The Federalist and Justice Story's Commentaries on the Constitution, modern constitutional theory began with the publication of Alexander BickelAlexander Bickel
Alexander Mordecai Bickel was a law professor and expert on the United States Constitution. One of the most influential constitutional commentators of the twentieth century, his writings emphasize judicial restraint....
's The Least Dangerous Branch. (The title is an allusion to The Federalist, in which Alexander Hamilton
Alexander Hamilton
Alexander Hamilton was a Founding Father, soldier, economist, political philosopher, one of America's first constitutional lawyers and the first United States Secretary of the Treasury...
wrote that the judiciary was the least dangerous of the three branches because it had neither the sword (like the Executive) nor the purse (like the Legislature). The book's primary (but not sole) contribution was to introduce the idea of the "countermajoritarian difficulty
Countermajoritarian difficulty
The counter-majoritarian difficulty is a perceived problem with judicial review of legislative laws...
." The idea expressed by the term countermajoritarian difficulty is that there is a tension between democratic government (as he defines it democratic government is majoritarian government) and judicial power. If the judiciary—an unelected branch of government—can overturn popular legislation, then either there is a fundamental contradiction within the democratic system, or there is a tension that must be resolved by curbing judicial power. (One of Bickel's solutions is for the Court to exercise "the passive virtues": that is, to decline to decide more than it has to decide.)
Important thinkers in the United States context
The following is a partial list:- Bruce AckermanBruce AckermanBruce Arnold Ackerman is an American constitutional law scholar. He is a Sterling Professor at Yale Law School and one of the most frequently cited legal academics in the United States....
, Professor of Law, Yale UniversityYale UniversityYale University is a private, Ivy League university located in New Haven, Connecticut, United States. Founded in 1701 in the Colony of Connecticut, the university is the third-oldest institution of higher education in the United States...
. Primary contributions: We the People: Foundations and We the People: Transformations. - Jack BalkinJack BalkinJack M. Balkin is an American legal scholar. He is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School...
, Professor of Law, Yale UniversityYale UniversityYale University is a private, Ivy League university located in New Haven, Connecticut, United States. Founded in 1701 in the Colony of Connecticut, the university is the third-oldest institution of higher education in the United States... - Charles A. BeardCharles A. BeardCharles Austin Beard was, with Frederick Jackson Turner, one of the most influential American historians of the first half of the 20th century. He published hundreds of monographs, textbooks and interpretive studies in both history and political science...
, Professor of Sociology, New School for Social Research, Primary contributions: An Economic Interpretation of the ConstitutionAn Economic Interpretation of the ConstitutionAn Economic Interpretation of the Constitution of the United States is a 1913 book by American historian Charles A. Beard. It argues that the structure of the Constitution of the United States was motivated primarily by the personal financial interests of the Founding Fathers... - Randy BarnettRandy BarnettRandy E. Barnett is a lawyer, a law professor at Georgetown University Law Center, where he teaches constitutional law and contracts, and a legal theorist in the United States...
, Professor of Law, Georgetown UniversityGeorgetown UniversityGeorgetown University is a private, Jesuit, research university whose main campus is in the Georgetown neighborhood of Washington, D.C. Founded in 1789, it is the oldest Catholic university in the United States... - Alexander BickelAlexander BickelAlexander Mordecai Bickel was a law professor and expert on the United States Constitution. One of the most influential constitutional commentators of the twentieth century, his writings emphasize judicial restraint....
, former YaleYALERapidMiner, formerly YALE , is an environment for machine learning, data mining, text mining, predictive analytics, and business analytics. It is used for research, education, training, rapid prototyping, application development, and industrial applications...
professor who published The Least Dangerous Branch, The Morality of Consent, The Supreme Court and the Idea of Progress, among other works. - Erwin ChemerinskyErwin ChemerinskyErwin Chemerinsky is an American lawyer and law professor. He is a prominent scholar in United States constitutional law and federal civil procedure...
, Dean, University of California, Irvine School of LawUniversity of California, Irvine School of LawThe University of California, Irvine School of Law is the law school at the University of California, Irvine . It is the fifth law school in the UC system and the first public law school to open in California in 40 years... - Ronald DworkinRonald DworkinRonald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...
, Professor of Law, New York University School of LawNew York University School of LawThe New York University School of Law is the law school of New York University. Established in 1835, the school offers the J.D., LL.M., and J.S.D. degrees in law, and is located in Greenwich Village, in the New York City borough of Manhattan.... - John Hart ElyJohn Hart ElyJohn Hart Ely is one of the most widely-cited legal scholars in United States history, ranking just after Richard Posner, Ronald Dworkin, and Oliver Wendell Holmes, Jr., according to a 2000 study in the University of Chicago's Journal of Legal Studies.-Biography:Born in New York City, John Hart...
, Scholar and former professor at several leading law schools. - Alex KozinskiAlex KozinskiAlex Kozinski is Chief Judge of the United States Court of Appeals for the Ninth Circuit, an essayist, and a judicial commentator.-Biography:...
, Judge on the U.S. Court of Appeals for the Ninth CircuitState (polity)| - Richard PosnerRichard PosnerRichard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
, Senior Judge on the U.S. Court of Appeals for the Seventh Circuit - Robert Post
- Richard PrimusRichard PrimusRichard Abraham Primus is an American legal scholar. He currently teaches United States constitutional law at Michigan Law School. In 2008, he was awarded a Guggenheim Fellowship for his work on the relationship between history and constitutional interpretation...
, Professor of Law University of Michigan Law SchoolUniversity of Michigan Law SchoolThe University of Michigan Law School is the law school of the University of Michigan, in Ann Arbor. Founded in 1859, the school has an enrollment of about 1,200 students, most of whom are seeking Juris Doctor or Master of Laws degrees, although the school also offers a Doctor of Juridical... - Antonin ScaliaAntonin ScaliaAntonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
, Associate Justice of the Supreme Court. His ideas on originalism published in A Matter of Interpretation. - Suzanna SherrySuzanna SherrySuzanna Sherry is a professor in the area of constitutional law with particular emphasis in the subject of federal courts. A graduate of Middlebury College, where she studied under Murray Dry, and the University of Chicago Law School, she is the Herman O. Loewenstein Professor of Law at Vanderbilt...
, Professor of Law, Vanderbilt University Law SchoolVanderbilt University Law SchoolVanderbilt University Law School is a graduate school of Vanderbilt University. Established in 1874, it is one of the oldest law schools in the southern United States. Vanderbilt Law has consistently ranked among the top 20 law schools in the nation, and is currently ranked 16th in the 2012...
. Primary contributions: Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations and Beyond All Reason: The Radical Assault on Truth in American Law (both with Daniel Farber of Boalt Hall). - Cass SunsteinCass SunsteinCass R. Sunstein is an American legal scholar, particularly in the fields of constitutional law, administrative law, environmental law, and law and behavioral economics, who currently is the Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration...
, Professor of Law, Harvard UniversityHarvard UniversityHarvard University is a private Ivy League university located in Cambridge, Massachusetts, United States, established in 1636 by the Massachusetts legislature. Harvard is the oldest institution of higher learning in the United States and the first corporation chartered in the country...
currently in the Obama Administration - William Howard TaftWilliam Howard TaftWilliam Howard Taft was the 27th President of the United States and later the tenth Chief Justice of the United States...
(b. 1858 - d. 1930), 10th Chief Justice of the United StatesChief Justice of the United StatesThe Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
(1921–1930); 27th President of the United StatesPresident of the United StatesThe President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
(1909–1913); Kent Professor of Constitutional Law and Legal History, Yale Law SchoolYale Law SchoolYale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
, Yale UniversityYale UniversityYale University is a private, Ivy League university located in New Haven, Connecticut, United States. Founded in 1701 in the Colony of Connecticut, the university is the third-oldest institution of higher education in the United States...
(1913–1921); Dean and Professor of Law, University of CincinnatiUniversity of CincinnatiThe University of Cincinnati is a comprehensive public research university in Cincinnati, Ohio, and a part of the University System of Ohio....
Law School; Solicitor General of the United States - Laurence TribeLaurence TribeLaurence Henry Tribe is a professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor at Harvard University. He also works with the firm Massey & Gail LLP on a variety of matters....
, Professor of Law, Harvard University Law School - William Van AlstyneWilliam Van AlstyneWilliam Warner Van Alstyne is an American lawyer, law professor, and constitutional law scholar. He currently holds the named position of Lee Professor of Law at William and Mary Law School....
, Professor of Law, College of William & Mary
Constitutional government as a part of German doctrine of the Rechtsstaat and the Russian concept of the Legal State
The Rechtsstaat doctrine (Legal state, State of Right, Constitutional state, constitutional government) was introduced in the latest works of the German philosopher Immanuel KantImmanuel Kant
Immanuel Kant was a German philosopher from Königsberg , researching, lecturing and writing on philosophy and anthropology at the end of the 18th Century Enlightenment....
(1724–1804) after US and French constitutions were adopted in the late 18th century. Kant’s approach is based on the supremacy of a country’s written constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
. This supremacy must create guarantees for implementation of his central idea: a permanent peaceful life as a basic condition for the happiness of its people and their prosperity. Kant was basing his doctrine on none other but constitutionalism
Constitutionalism
Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
and constitutional government.
Kant had thus formulated the main problem of constitutionalism, “The constitution of a state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
is eventually based on the morals of its citizens, which, in its turns, is based on the goodness of this constitution.” Kant’s idea is the foundation for the constitutional theory of the twenty-first century. The Legal state concept is based on the ideas, discovered by Immanuel Kant, for example, in his Groundwork of the Metaphysic of Morals:
“The task of establishing a universal and permanent peaceful life is not only a part of theory of law within the framework of pure reason, but per se an absolute and ultimate goal. To achieve this goal, a state must become the community of a large number of people, living provided with legislative guarantees of their property rights secured by a common constitution. The supremacy of this constitution… must be derived a priori from the considerations for achievement of the absolute ideal in the most just and fair organization of people’s life under the aegis of public law.” . The Russian legal system, borne out of transformations in the 19th Century under the reforms of Emperor Alexander II, is based primarily upon the German legal tradition. It was from here that Russia borrowed a doctrine of Rechtsstaat, which literally translates as Legal State. The English most close analogue is «rule of law» . Rechtsstaat is a concept in continental European legal thinking, originally borrowed from German legal philosophy, which can be translated as “legal state” or "state of law", or "state of rights", "constitutional state" in which the exercise of governmental power is constrained by the law. The Russian Legal state concept adopts the written constitution as a supreme law of the country (the rule of constitution).. The concept of “legal state” (“pravovoe gosudarstvo” in Russian) is a fundamental, but undefined, principle that appears in the very first dispositive provision of Russia’s post-Communist constitution: “The Russian Federation – Russia – constitutes a democratic federative legal state with a republican form of governance.” Similarly, the very first dispositive provision of Ukraine’s Constitution declares: “Ukraine is a sovereign and independent, democratic, social, legal state.” The effort to give meaning to definition “Legal State” is anything but theoretical.
President of the Constitutional Court of Russia Valery Zorkin wrote in 2003:
“Becoming a legal state has long been our ultimate goal, and we have
certainly made serious progress in this direction over the past several years.
However, no one can say now that we have reached this destination.
Such a Legal state simply cannot exist without a lawful and
just society. Here, as in no other sphere of our life, the state reflects the level
of maturity reached by society.".
Russian concept of Legal state adopted many segments of the constitutional economics
Constitutional economics
Constitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
. One of the founders of constitutional economics James M. Buchanan
James M. Buchanan
James McGill Buchanan, Jr. is an American economist known for his work on public choice theory, for which he received the 1986 Nobel Memorial Prize in Economic Sciences. Buchanan's work initiated research on how politicians' self-interest and non-economic forces affect government economic policy...
, the 1986 recipient of the Nobel Memorial Prize in Economic Science argues that in the framework of constitutional government any governmental intervention and regulation have been based on three assumptions. First, every failure of the market economy
Market economy
A market economy is an economy in which the prices of goods and services are determined in a free price system. This is often contrasted with a state-directed or planned economy. Market economies can range from hypothetically pure laissez-faire variants to an assortment of real-world mixed...
to function smoothly and perfectly can be corrected by governmental intervention. Second, those holding political office and manning the bureaucracies are altruistic upholders of the public interest, unconcerned with their own personal economic well-being. And, third, changing the responsibilities of government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
towards more intervention and control will not profoundly and perversely affect the social and economic life.
See also
- ConstitutionalismConstitutionalismConstitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
- Constitutional lawConstitutional lawConstitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
- Constitutional economicsConstitutional economicsConstitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- Legal reform
- Rule of lawRule of lawThe rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
- Rule According to Higher LawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...
- Philosophy of law