What Is "the Constitution"?
(And Other Fundamental Questions)
Several of the most divisive moral conflicts that have beset us Americans in the period since the end of World War II have been transmuted into constitutional conflicts -- conflicts about what the Constitution of the United States forbids -- and resolved as such. The most prominent instances include the conflicts over racial segregation, race-based affirmative action, sex-based discrimination, homosexuality, abortion, and physician-assisted suicide, each of which has been resolved -- at least in part, and at least for a time -- on the basis of a claim about what the Fourteenth Amendment does or does not forbid. 1 Which of the conflicts, if any, understood as constitutionalconflicts, have been resolved as they should have been resolved; that is, which have been resolved on the basis of the Constitution as they should have been resolved? If one wants, as I do, to pursue that inquiry, one must first answer three questions: What is "the Constitution"? What does it mean to interpret the Constitution? Is the Supreme Court supreme in interpreting the Constitution? Although this chapter is, then, preparatory, the questions I address here -- connected questions -- are fundamental.
The referent of the phrase "the Constitution of the United States" is sometimes the text -- the writing -- that we call the Constitution of the United States. But the referent is sometimes -- indeed, often -- "the supreme Law of the Land". (Article VI of the Constitution states: "This Constitution . . . shall be the supreme Law of the Land . . .") That there is no disagreement about what sentences the Constitution-in-the-first-sense (the constitutional text) contains 2 does not mean that there is no disagreement about what norms the Constitution-in-the-second-sense (the supreme law)