The End of Constitutional Law?

By Shinar, Adam | Constitutional Commentary, Spring 2014 | Go to article overview

The End of Constitutional Law?


Shinar, Adam, Constitutional Commentary


ON CONSTITUTIONAL DISOBEDIENCE. By Louis Michael Seidman. (1) New York, N.Y.: Oxford University Press. 2013. Pp. xii + 162. $21.95.

I. INTRODUCTION

Displeasure with constitutional law has been a fixture in American constitutional scholarship probably for as long as constitutional law has been around. Yet in the main, scholars have worked within the confines of the enterprise itself, trying to show how particular judicial decisions were unwise, rested on faulty logic, or were unsupported given the writer's preferred mode of interpretive methodology. Mainstream constitutional theory also accepted the premises of constitutionalism. Foundational works did not question the desirability of having a constitution or dispute the courts' power of judicial review of legislation, but rather sought to justify it. Different as they are, Bickel's The Least Dangerous Branch, (3) Ely's Democracy and Distrust, (4) Tribe's American Constitutional Law, (5) or Ackerman's We the People, (6) broadly stand for the idea that although constitutionalism and judicial review may seem problematic from a democratic standpoint, they can nevertheless be vindicated in one way or another. And moreover, that the American constitutional project, as it has developed over the years, is one worth preserving.

In recent decades, however, this approach has begun to unravel. Armed with the political insights of American legal realism and critical legal studies, the internal critique of Supreme Court decisions, while still the bread and butter of constitutional scholarship, has been supplemented by new avenues of constitutional theorizing. The problem for the new wave of constitutional scholarship did not (or not always) lie with faulty judicial reasoning, internal contradictions, or morally troublesome court decisions, but with a deep skepticism about the constitutional project as a whole. Weary of deploying the usual moves against decisions they believed to be mistaken, scholars went after the institutions that produced them, namely, the Supreme Court. The calls to end or reform judicial review grew out of an exasperation over the way constitutional law was made, the institutions in charge of its development, and what scholars believed was the harmful effect of judicial review on the political branches and on the political culture. (7)

The most important intellectual movement to emerge from this, Popular Constitutionalism, spearheaded the call to "Take the Constitution away from the Courts," or to significantly cut back on the power of judicial review. Popular and progressive constitutionalists, under various stripes, sought to shift the task of constitutional interpretation from the Supreme Court to Congress, to the Executive, to states, to lower courts, to social movements, and to the people at large. (8) Instead of focusing exclusively on the first order level of desirable or undesirable decisions, popular constitutionalists turned to interrogate the second order level of the political institutions that generate those decisions.

Despite their break with earlier constitutional theorists, popular constitutionalists still claimed adherence to the Constitution, as they sought to reclaim it from courts and return it to the "people." The problem, they maintained, was that courts have monopolized constitutional interpretation. This "judicial overhang" leads legislators to abdicate their constitutional responsibility; having non-elected judges decide constitutional issues, when those involve subjects of deep societal conflict, strips the people of their capacity for self-government. Of course, some of these arguments were not new, but they did crystallize into a more coherent movement that deployed a shared rhetoric and reasoning.

Popular constitutionalists were not alone. Others, such as Sanford Levinson and Larry Sabato, called to take stock not just of judicial review, but of the constitutional design itself. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The End of Constitutional Law?
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.