American Constitutionalism: From Theory to Politics

By Stephen M. Griffin | Go to book overview

count of relevant work by political scientists. Their work strongly influences the treatment of the topics in chapters 2, 3, and 4.

On the other hand, I understand constitutional theory as an inquiry in the middle range between actual political-legal decisionmaking and the more abstract territory occupied by political and legal philosophy. One consequence is that I do not discuss the contributions to constitutional theory of each of the significant approaches to legal theory such as critical legal studies, law and economics, critical race theory, feminist legal theory, the law and literature movement, and so on. These legal theories are better discussed directly rather than in terms of what they have to say about the Constitution (and each could be the topic of a separate book).3 In addition, I believe that all of these theories at least implicitly employ the kind of legalistic or Supreme Court–centered approach that I criticize at various points in this book.4

As mentioned above, the guiding idea of this book is that the best way to understand the Constitution and the American constitutional tradition is through the study of the idea of constitutionalism. Constitutionalism should be appreciated as a dynamic political and historical process rather than as a static body of thought laid down in the eighteenth century. This is not a call to ignore the designs of the founding generation. It is rather an attempt to describe American constitutionalism in a way that will enable us to comprehend the development of the Constitution over time and the complex constitutional system of the present. To that end, I will offer some informal remarks to preview the argument in chapter 1 that influences many of the discussions in subsequent chapters.

The key to understanding American constitutionalism is to appreciate it as a somewhat implausible political practice. Many scholars have made two observations about American constitutionalism: it attempts to use words to create a political order, and the artfully designed system of institutions specified in the Constitution works to maintain that order by di

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3
In particular, readers familiar with contemporary theories of constitutional interpretation will note the absence in chapter 5 of any discussion of the relevance of theories developed in the context of literary interpretation. In my judgment, the use of literary theory to illuminate constitutional interpretation is largely a dead end, given the significant differences between interpreting literary texts and the political-legal enterprise of interpreting the Constitution. For helpful introductions to this approach, see Gregory Leyh, ed., Legal Hermeneutics: History, Theory, and Practice (Berkeley: University of California Press, 1992); Sanford Levinson and Steven Mailloux, eds., Interpreting Law and Literature: A Hermeneutic Reader (Evanston, Ill.: Northwestern University Press, 1988).
4
I regret, however, that I could not include a discussion of the relevance of public choice theory to constitutional theory. There is an excellent introduction to public choice theory that includes discussions of issues relevant to constitutional theory. See Daniel A. Farber and Philip P. Frickey, Law and Public Choice: A Critical Introduction (Chicago: University of Chicago Press, 1991).

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