Written Constitutionalism as the American Project
A constitution is an account of the ways in which a people establish and
limit the power by which they govern themselves, in accordance with the ends
and purposes that define their existence as a political community. To the
extent that a constitution identifies the first principles and ultimate ends of
political life, it implicates questions of political and moral philosophy.
Considered in this light, a constitution is normative, intended to prescribe
what ought to be done by individuals and by the community they constitute for
their mutual benefit. A constitution also has a practical and descriptive
function: it indicates or discloses the institutional structures, forms, and
procedures by which governmental power in a community is organized and the laws
and rules of action that regulate the conduct of government. Tension between
these dimensions of constitutional meaning — between normative standards
and practical political reality — is reflected in controversy that often
occurs in the life of a people over how they are constituted, or — what
is the same thing — what their constitution is.
Conceived of as the problem of how to organize the political life of a
people, constitutionalism is as old as political theory itself. Considered in
historical terms, however, with reference to the language and discourse that
are recognized as distinctive to the subject, constitutionalism is more a
modern than an ancient phenomenon. Constitutionalism is synonymous with the
rule of law, the idea that good government exists when a body of stable
political rules and rights is applied impartially and equitably to all
citizens. The rule of law is an ancient idea, but the discovery or invention of
means to give it practical effect and institutional permanence, in ways that
limit the power of the sovereign, is a development of modern times. The making
of agreements between political leaders, such as occurred in the Glorious
Revolution in England in 1689, and the writing of constitutions expressing the
willingness of constituent groups in the community to accept a set of political
rules, such as occurred in the American Revolution, were the decisive steps
marking the emergence of limited constitutional government.1 Since
the eighteenth century the adoption of a written constitution, replacing
government based on customary and traditional authority, has been considered a
necessary condition for limited government and the rule of law.
The broad significance and range of meanings associated with the concept
of a constitution in modern political thought did not obtain in ancient and
medieval usage. In Roman law, constitutio referred to a special law or
ordinance of the emperor. Not until seventeenth-century England was the word
"constitution" used to describe the structure and composition of the body
politic, acquiring in the world of politics an implicitly normative connotation
analogous to its use in accounts of the natural world.2 Reinforcing
this association was the use of "constitution" to refer to fundamental law,
meaning immemorial custom and the principles of reason, justice, and equity
that constituted natural law.3
In the American colonies in the eighteenth century, "constitution"
signified the design, structure, and composition of government. Colonial usage
gave the word a normative connotation, proscribing or limiting the exercise of
government power for certain purposes, and prescribing forms and procedures for
the exercise of government power. Although in England many legal and political
documents possessed constitutional significance, the constitution was the
structure of political and governmental institutions, including the principles
and practices that defined and regulated the relationship between institutions.
It was customary and traditional, and thus it was prescriptive or normative by
virtue of its customary character. By contrast, in the American colonies, owing
in part to their settlement by means of charters granted by the crown and
covenants formed by religious communities, a constitution came to be seen as a
written document or text.
In an American constitution were collected the ends and purposes that
defined a political community, as well as the institutional structure and
procedures through which government was required to act. In the American
Revolution, constitutions were authoritative because they were based on the
consent of the people and because they were believed to embody fundamental law.
As the people assumed sovereignty or had it claimed by revolutionary leaders on
their behalf, constitutional historian William G. Andrews explains, "it became
useful to inscribe on parchment the limits and procedures believed by them to
be imposed by natural law on the governors.... The people wanted to have before
them that which they were to interpret." Documentary constitutions eased the
task of popular interpretation, making "the directions of the governed to the
governors concrete and explicit, on the basic natural law questions."
Constitutions provided standards for measuring the performance of governors by
In the nineteenth century, acceptance of the idea of a written
constitution as the fundamental law and framework of government led scholars to
seek the origin of constitutionalism in premodern political thought. The
closest equivalent was found in the notion of the "regime." This concept
referred to the structure and distribution of government power in a manner
reflective of the social composition of the community, including standards of
reason, virtue, and justice that were the final cause of political life. The
difference between premodern and modern constitutionalism was that the former
was mainly customary and only incidentally documentary, while the latter was
mainly documentary and incidentally customary. The great benefit of having a
documentary constitution, it was believed, was to make practicable the
enforcement of principles, norms, and rules limiting government. A customary or
unwritten constitution, consisting of convention, practice, and usage, was
thought to be not a real constitution because it was not enforceable against
But was it really possible to impose substantive limitations and
procedural rules of action on government, in the same way a government imposes
rules of action on individuals? This basic issue in modern constitutionalism is
a problem of political theory. It can be understood, however, only in the light
of historical inquiry into the practical consequences of conducting government
and politics based on written constitutions.
That it would be difficult to limit government through written
fundamental law was recognized at the outset. Facing Anti-Federalist opposition
to the proposed constitution, James Madison in The Federalist, No. 37,
discussed the problem of using ordinary language to organize and regulate
political life. "[N]o skill in the science of government has yet been able to
discriminate and define, with sufficient certainty, its three great provinces
— the legislative, executive, and judiciary," Madison wrote. The most
enlightened legislators and jurists were equally unsuccessful in delineating
the several objects and limits of different codes of laws and tribunals of
justice. "The use of words is to express ideas," he said, but there was
obscurity and equivocality in all new laws, notwithstanding the deliberation
and technical craft with which they were written. Even the meaning intended by
God himself, Madison observed, when he "condescends to address mankind in their
own language," was rendered "dim and doubtful by the cloudy medium though which
it is communicated."5
Madison, in the idiom of his time, did not believe that "words are
things." He was not a postmodernist ahead of his time who held that language
constitutes reality. His remarks on language and politics came in a discussion
of the difficulties faced by the Federal Convention and were influenced by the
rhetorical strategy adopted to defend the Constitution in the ratification
controversy. If Madison's comment is to be taken seriously as a reflection on
the feasibility of the written constitutionalist project, his opinion on how
the authors of the Constitution overcame the difficulties facing them should
also be remembered. Observing the unanimity that finally prevailed in the
convention, he wrote: "It is impossible for the man of pious reflection not to
perceive in it a finger of that Almighty hand which has been so frequently and
signally extended to our relief in the critical stages of the
How to apply the Constitution so that it is an effective limitation on
government has been the continuing challenge of American constitutionalism. In
the new type of republican politics that followed adoption of the Constitution,
political action was conceived of in relation to provisions of the
constitutional text. If the principles of republican government were embodied
in the document, fidelity to the text was the measure of fidelity to
republicanism as the political creed of the nation. Yet partisanship, ideology,
and political exigency threatened to transform textualism into pretextualism,
making fidelity to the written constitution a ceremonial gesture. Invoking the
constitutional document might serve as a justification for political action
divorced from the principles and values of limited republican government.
What raises constitutionalism above the level of a naive trust in the
power of written words to control political action is moral and philosophical
conviction. Belief that the Constitution is good in itself, that its value is
not merely instrumental, is necessary to its maintenance and preservation. Yet
to the extent that this belief points beyond the documentary character of the
Constitution it tends, paradoxically, to call into question the literal
significance of the text. In the ratification controversy Alexander Hamilton
acknowledged this feature of constitutionalism. Discussing the necessary and
proper and supremacy clauses, he wrote: "it may be affirmed with perfect
confidence that the constitutional operation of the intended government would
be precisely the same if these clauses were entirely obliterated as if they
were repeated in every article. They are only declaratory of a truth which
would have resulted by necessary and unavoidable implication from the very act
of constituting a federal government and vesting it with certain specified
The documentary text is an instantiation, a sign or symbol, of
fundamental law. It expresses in modern form the view of classical philosophy
that the "endurance of 'writings' provides the possibility of meeting the
variability of human things by preserving wisdom in however diluted a form
beyond the demise of the wise founder."8 In written
constitutionalism the text is essential, but it is not, in itself, a generator
If the text of a constitution is declaratory of the truths of political
science or political philosophy, in what sense is it essential? Hamilton
believed it was required by practical reason. Referring to the necessary and
proper clause, he said it was written into the Constitution as a precaution,
"to guard against all cavilling refinements in those [state government
officials] who might hereafter feel a disposition to curtail and evade the
legitimate authorities of the Union." On this and other cardinal points,
Hamilton observed, the convention thought it best "to leave nothing to
It is possible that the social consensus supporting a written
constitution will be so broad as to preclude controversy over its meaning, in
which case the value of the document would be symbolic. This has not been true
of the American Constitution. On the most essential matters, the meaning of the
document has been subject to dispute. A premium has been placed on construction
and interpretation of the text, and the outcome of public policy disputes has
depended on the meaning of specific constitutional principles and provisions.
Although acceptance of the Constitution expresses a consensus that peaceful
constitutional controversy is better than violent dispute resolution,
interpretation of the text has been a source of conflict that at times has
tested the depth of the public's attachment to the Constitution as fundamental
That the introduction of textual constitutionalism into American
politics would make the rule of law an operational reality, substituting
peaceful constitutional change for violent revolutionary upheaval, was perhaps
a reasonable inference to be drawn from republican political experience. That
it would eliminate conflict over the scope and purpose of government in the
American Union was an unrealistic expectation that the practice of
constitutional politics showed to be false.
The problem was that basic constitutional principles were indeterminate,
or appeared so, because their meaning depended on interpretation of the text in
which they were embodied. Yet, while the imperfection and ambiguity of language
were recognized, this was not viewed as a fundamental defect in the
constitutional order. Even when controversy over the meaning of the
Constitution broke the bonds of union during the Civil War, the practice of
written constitutionalism was not abandoned. The crisis of the Union meant that
the deepest political questions — in this case, nation making and state
building — are constitutional problems that demand the prudence of the
statesman rather than the jurisprudence of lawyers.
It was after the settlement of war issues in the Reconstruction
amendments — a settlement that confirmed the importance of written
constitutionalism — that the founders' project came under attack. Critics
complained that constitutional formalism and ritualistic devotion to the
document prevented the country from coming to grips with the realities of
modern society. To structure political controversy on the basis of arguments
from the written Constitution, it was said, introduced ambiguity,
inconsistency, and legalistic sophistry into public life. In the twentieth
century, as the essays in this book show, these arguments developed into a
practical and theoretical challenge to written constitutionalism.
This tradition of criticism finds expression in a recent study of
cultural constitutionalism that presents a wealth of data describing public
ignorance and lack of understanding of the Constitution. Historian Michael
Kammen attributes this condition to the willingness of public officials,
including judges, to change their constitutional arguments for the sake of
political expediency. Such behavior opens them to charges of hypocrisy and
permits their words to be manipulated for partisan purposes, resulting in legal
uncertainty and often outright confusion.11 The people's lack of
constitutional knowledge exists, however, within a framework of constitutional
consensus. This is a political good and is directly related to written
constitutionalism. Kammen states that "the basic pattern of American
constitutionalism" is "one of conflict within consensus."12
This agreement is manifested in "respect for the Constitution and the system of
government it created," which is dependent on written constitutionalism. The
tradition restrains the behavior of most citizens, especially public officials.
We may not like the constraints that respect for the written Constitution
imposes, Kammen observes, but we accept them.13
Although expressing doubts and reservations, critics like Kammen are in
the end forced to recognize the practical value of the written Constitution.
Nevertheless, the argument that cultural constitutionalism is the basis of the
American polity is the most recent expression of the tendency toward "realist"
criticism that may be said to be inherent in the project of written
constitutionalism. As has been true from the outset, the question can always be
asked whether the application of the text Constitution to public policy making
and the actions of government is consistent with the principles and norms of
republican government. This is an essentially political question. If the
judgment is negative, the authority of the written Constitution is called into
question and is subject to being superseded by an alternative constitutional
model. In twentieth-century American politics, this alternative is the idea
that beneath forms of government there exists an unwritten constitution that is
a true description of the ends, purposes, and values of the political
Although written constitutionalism emerged as a reaction against the
unwritten English constitution, there is a sense in which the notion of an
unwritten constitution is not necessarily incompatible with a written
fundamental law. Constructions of the written constitution in the form of
statutes, executive orders, and judicial decisions elaborate the meaning of the
document. Assuming consistency with the text, they might be thought of as an
unwritten, in the sense of uncollected, expression of the written fundamental
law as applied. As constructions and interpretations proliferate and become
more far-reaching, however, their connection to the text may become tenuous,
until the point is reached where they warrant a different description. In
contradistinction to the written constitution, they can be understood as an
unwritten constitution, similar to judicially evolved common law in English
The concept of the unwritten constitution has generally been appealed to
in times of political crisis as a means of challenging the established
interpretation of the written Constitution. In 1860 the controversy over the
nature of the Union was at one level a dispute over the meaning of the
constitutional text: was state secession a valid construction of the document?
At a deeper level the controversy reflected uncertainty and ambiguity about how
the American people were constituted as a political community. One could
formulate the problem by asking what the real constitution of the country was,
and it is noteworthy that the first systematic accounts of American
republicanism based on the idea of an unwritten constitution were offered at
this time.14 During the Civil War and Reconstruction, moreover,
judicially supervised textual constitutionalism was subordinated to
political-branch construction of the principles of republican government and
the rule of law.
From the 1880s to the 1930s the concept of the unwritten constitution
acquired prominence in American political science. As discussed in this book,
it was employed by progressive and liberal reformers to attack conservative
legal doctrines predicated on written constitutionalist orthodoxy. Criticism of
laissez-faire constitutionalism as mechanical and formalistic rested on
legal-realist assumptions, referred to as constitutional realism, that
culminated in Franklin Delano Roosevelt's plan of 1937 to pack the Supreme
Court. Thereafter, the axioms of liberal jurisprudence were known as "living
Constitutionalism," a concept derived from Oliver Wendell Holmes's famous
assertion that the life of the law is experience, not logic. The rhetoric of
living constitutionalism was compatible with the notion of "process
jurisprudence," the middle ground that New Deal lawyers staked out between
conservative declaratory jurisprudence based on orthodox written
constitutionalism and radical legal realism that dismissed constitutional
textualism as irrelevant to modern government.15 In the long run,
however, the logic of living constitutionalism was fundamentally antagonistic
to the founding project of written constitutionalism.
Claiming for their generation the right to shape constitutional law in
accordance with contemporary needs, New Deal lawyers at first justified
federal regulatory schemes under doctrines of national authority derived from
Marshall Court decisions. When Roosevelt attempted to increase the size of the
Supreme Court and consolidate administrative authority in the executive branch,
however, he scorned the written constitutionalism of the founding.16
Regarding the Constitution as "a stumbling block to be circumvented," Roosevelt
treated constitutional arguments as a pretext for advancing partisan and
The long-term result of the New Deal was to replace limited-government
written constitutionalism with unlimited-government living constitutionalism.
As a public philosophy, New Deal liberalism held that in modern industrial
society it was necessary to limit economic liberty and property rights in order
to promote the public interest. Old doctrines of constitutional law were thrown
out and new ones were adopted by the Supreme Court that reinterpreted
republican government in statist terms of social welfare and security. Statist
liberalism was rationalized in the metaphor of the living Constitution,
defining the fundamental law as an adaptive, growing social organism.
Superficially and formally a written document, the Constitution was really
statutes, executive and administrative orders, judicial decisions, cultural
attitudes and values, and public opinion and beliefs, all evolving in response
to social forces and political events.
Living constitutionalism appealed to the idea of the unwritten
constitution. The real constitution of the American people was a sovereign
national government, centered in a chief executive with authority to take any
action necessary to promote the public interest, provide social welfare, and
protect national security. While rejecting laissez-faire judicial doctrines,
living constitutionalism retained judicial supervision of constitutional law,
ostensibly as an interpretation and affirmation of the text Constitution.
Living constitutionalists used the forms and texts of the written Constitution
rhetorically to legitimate the regulatory-welfare state.
From 1937 to 1960 living constitutionalism provided the doctrinal
framework of statist liberalism. The famous Carolene Products footnote
of 1938 was later held up as a prophetic indication of the course of living
constitutionalist jurisprudence after World War II.18 The
outstanding example of judicial policy making in the service of living
constitutionalism in this period was the school desegregation decision,
Brown v. Board of Education (1954). Deeply controversial at the time, it
was later eulogized as a profoundly moral decision that changed the course of
race relations in the United States. The most significant result of the case
may have been to encourage judicial activism. As the civil rights revolution
proceeded, many lawyers, judges, and government officials concluded that courts
should be a major institution for reforming American society.
Supreme Court decisions in the 1960s enacted policies in the areas of
race relations, criminal procedure, religion and education, speech and press
freedom, legislative apportionment, and welfare rights. The decisions were
viewed by the justices as the logical outcome of interpretation of the written
Constitution, the traditional means by which the fundamental law was adapted to
the changing needs of society. When conservative justices who were expected to
show more judicial restraint continued the practice of judicial activism in the
1970s, judicial decision making was more readily acknowledged as legislative in
nature. Evidence of this realist view of the judicial function was Roe v.
Wade (1973), the abortion rights case. The decision was criticized even by
liberal scholars as an exercise of judicial fiat not based on any principle
found in the text of the Constitution.19
The legitimacy of judicial review rested on the assumption that the
decisions of the Supreme Court were applications and interpretations of the
written Constitution. In Cooper v. Aaron (1958), the Court went so far
as to say that it was "supreme in the exposition of the law of the
Constitution" and that its interpretation was "the supreme law of the land."
Always subject to questioning, the presumed identity between Court and
Constitution began to break down in the aftermath of Roe v. Wade. With
increasing candor, constitutional law was described as distinct from, perhaps
not remotely related to, the text of the Constitution. To use a legal realist
analysis, living constitutionalism manipulated the document as a pretext for
policy making based on the ideology and subjective will of Supreme Court
Judicial activist policy making by the Court under Chief Justice Warren
Burger provoked a conservative reaction in constitutional theory. It took the
form of a demand for a jurisprudence of original intent, based on the text of
the Constitution and the original understanding of its framers and ratifiers.
The reassertion of written constitutionalism led defenders of living
constitutionalism to appeal explicitly to the idea of the unwritten
constitution as a justification of judicial activist policy
making.20 Invoking moral philosophy as a source of authority,
liberal commentators advocated "noninterpretivism" as a method of adjudication
that dispensed with the text of the Constitution. In this theory of judicial
review the text Constitution was a rhetorical symbol used to persuade the
public of the legitimacy of judicial policy making.
Despite conservative warnings that an excess of judicial activism would
destroy the Court's legitimacy, judicial legislation expanded. It was protected
by the idea, accorded virtually dogmatic status in the legal culture, that the
Court had exclusive authority over constitutional meaning. Seeing themselves as
assisting the Court, "noninterpretivist" scholars fashioned constitutional law
doctrines that by their own admission were unrelated to the text of the
Constitution. The result was judicially managed policy making divorced from the
Judicial activism was seen as inherent in the development of
constitutional law based on a written Constitution consisting of abstract
concepts, a "thing of wax" to be shaped by judicial interpreters for partisan
and ideological ends.21 This perception of constitutional law was
given a more up-to-date theoretical justification in postmodernist
epistemology, which assumed that language has no intrinsic meaning and words do
not correspond to real things. Postmodernist legal theory rejected the
distinction between what was in the Constitution and what was not.22
On this theory, criticism of judicial activism as a rejection of written
constitutionalism could be dismissed as a partisan attack on an independent
judiciary, as in the controversy over Judge Robert Bork's nomination to the
Supreme Court in 1987.
Liberal attacks on originalist jurisprudence express at once
intellectual disdain for written constitutionalism and fear that originalism
will win popular backing and political support. This ambivalent attitude
reflects the fact that the text Constitution, contrary to postmodernist legal
theory, has real meaning and practical import. It exacts costs from political
and governmental actors, limits government, and shapes and directs political
The configurative effect of the Constitution depends in part on the
document's symbolic value. Not sharing postmodernist philosophical assumptions,
citizens believe that words have meaning and that the written Constitution
embodies principles, forms, and procedures that define republican government.
Citizens regard the Constitution as paramount and binding law. Treating it as a
textual instantiation of fundamental law, they accord it preeminent status as
the proximate ground of legitimacy in American government. Citizens, the people
as constituent power, believe that the principles and forms of the Constitution
are both practically useful and intrinsically valuable in the conduct of
political life. From this standpoint, constitutional construction is a basic
feature of political life that affirms the value of the text
Whether the American people in the late twentieth century have the same
constitution as when they assumed their existence as an independent nation is a
question of practical as well as historical value. It is purely significant
that the written Constitution of 1787, as amended, continues to be the object
of discussion, analysis, and argument in American government and politics.
Precisely what this fact signifies, however — whether it means that the
written Constitution is a normative fundamental law that limits government
— is controversial. As the essays in this book indicate, this question
can be approached analytically under the concepts of written and unwritten
constitutionalism. More perhaps than at any time in the twentieth century,
constitutional law is characterized by tension between these theoretical
The principal features of American national government in the 1990s are
a presidential establishment and judicial hierarchy that claim authority to
decide any issue that arises in political and social life, no matter how local
it might appear. As a practical matter, the question is whether the executive
and judicial authority can be limited to the ends, principles, and forms of
To place this problem in the framework of the unwritten, living
constitution raises what appear to be insuperable difficulties. Under this
doctrine any arrangement of the parts and powers of government that may exist
— anything government does — although politically controversial, is
by definition constitutionally legitimate. The idea of a constitution as a
standard of legitimacy and limitation on government loses its meaning.
Conceived of in this way, a constitution is at best an exercise in prudence, at
worst an acquiescence in government power.
Historically and practically, the founding project of written
constitutionalism better meets the republican requirement for a fundamental law
that limits government. The written Constitution provides an account of the
ends, principles, and forms of government that is as relevant to contemporary
political life as it was to politics in the founding period. The power of the
modern presidency, for example, is a threat to republican government. Under the
principles of written constitutionalism, however, the executive power can be
construed to impose limits on presidential government.24 The same
can be said of government by judiciary. No warrant for the kind of judicial
legislation and policy making that exists today can be found in the written
constitutionalism of the republican founding.
Presidential and judicial authority, or any other concentration of power
that might threaten limited republican government, can be described as the real
constitution of American government produced by twentieth-century historical
forces Under the theory of the unwritten living Constitution, description
becomes prescription, conferring legitimacy and normative sanction Considered
from the standpoint of the citizen or government official, however, legitimacy
claimed in the name of the unwritten constitution is a counterfeit authority
The better approach to the problem of limited government is critically to make
an account of existing institutions and practices in the light of the written
Constitutionalism, in the acceptation of the term required by the
internal perspective of the citizen, insists on fidelity to the constitutional
text It does so not because the citizen believes that invoking the words of the
Constitution, as a shibboleth, will by itself control political and
governmental action What the citizen-constitutionalist knows, rather, is that,
supported by republican conviction about the value of self-government, the
written Constitution of 1787 supplies the rule of law that is indispensable to
the maintenance of free, popular, limited government.
1 Barry R. Weingast, "The Political Foundations of Democracy and the
Rule of Law," American Political Science Review 91 (1997), 245-63 See
also Charles Howard McIlwain, Constitutionalism Ancient and Modern, rev.
ed. (Ithaca, N. Y. Cornell University Press, 1947).
2 Gerald Stourzh, "Constitution Changing Meanings of the Term
from the Early Seventeenth to the Late Eighteenth Century," in Conceptual
Change and the Constitution, ed. Terrence Ball and J. G. A. Pocock
(Lawrence University Press of Kansas, 1988) pp. 37-38.
3 J. G. A. Pocock, The Ancient Constitution and the Feudal Law
English Historical Thought in the Seventeenth Century (New York W. W.
Norton, 1967), pp. 48-51, J. W. Gough, Fundamental Law in English
Constitutional History (Oxford Oxford University Press, 1955).
4 William G. Andrews, Constitutions and Constitutionalism, 3d ed.
(Princeton, N. J. D. Van Nostrand, 1968), p. 21.
5 The Federalist Papers, intro by Clinton Rossiter (New York New
American Library, 1961), pp. 28-29.
6 Ibid., pp. 230-31.
7 Ibid., No 33, p. 202.
8 Paul Stern, "The Rule of Wisdom and the Rule of Law in Plato's
States man," American Political Science Review, Vol. 91 (1997),
9 Andrews, Constitutionalism, p. 26.
10 The Federalist, p. 203.
11 Michael Kammen, A Machine That Would Go of Itself The Constitution
in American Culture (New York Random House, 1986), p. 12.
12 Ibid., p. 29. Italics in original.
13 Ibid., p. 123.
14 Sidney George Fisher, The Trial of the Constitution
(Philadelphia, 1862), Orestes Brownson, The American Republic Its
Constitution Tendencies and Destiny (New Haven, Conn College and University
Press, 1972, orig pub 1866), John C. Hurd, The Theory of Our National
Existence (Boston Little, Brown, 1881).
15 G. Edward White, The American Judicial Tradition Profiles of
Leading American Judges, expanded edition (New York Oxford University
Press, 1988), pp. 292-316.
16 John A Rohr, To Run a Constitution The Legitimacy of the
Administrative State (Lawrence University Press of Kansas, 1986), pp.
111-70, Sidney M. Milkis, The President and the Parties (New York Oxford
University Press, 1993).
17 David E. Kyvig, Explicit and Authentic Acts Amending the U. S.
Constitution 1776-1995 (Lawrence University Press of Kansas, 1996), p. 306.
18 In footnote 4 of U. S. v. Carolene Products Co (1938), Justice
Harlan Fiske Stone proposed a judicial policy of deference to legislative
policy making in social and economic matters, as well as critical judicial
scrutiny of legislative policy making in the area of civil liberties, with a
view toward protecting the rights and interests of minority groups In the 1960s
the concept of civil rights was expanded and transformed into a policy of
social and economic redistribution in the name of affirmative action.
19 John Hart Ely, "The Wages of Crying Wolf A Comment on Roe v.
Wade," Yale Law Journal 82 (1973), 947.
20 Thomas C. Grey, "Do We Have An Unwritten Constitution?" Stanford
Law Review 27 (1975), 703-18.
21 Leonard W. Levy, Original Intent and the Framers Constitution
(New York Macmillan, 1988), pp. 54, 342.
22 J. M. Balkin, "The Rule of Law as a Source of Constitutional Change,"
Constitutional Commentary 6 (1989), 21-27 A general work of
constitutional commentary illustrating the postmodernist approach is Sanford
Levmson, Constitutional Faith (Princeton, N. J. Princeton University
23 Standing in sharp contrast to citizens' respect and reverence for the
Constitution is a cynical academic attitude, seen in a recent discussion,
"Constitutional Stupidities Symposium," Constitutional Commentary 12
(1995), 139-225 The symposiasts express irreverence, impatience, and disdain
for the Constitution Focusing attention on "the primary imperfections of our
current constitutional scheme," they state that the symposium "is not meant to
be the last word on the topic of constitutional stupidity," but is intended as
"the initiation of a continuing conversation." Ibid., pp. 140-41.
24 Louis Fisher, Presidential War Power (Lawrence University
Press of Kansas, 1995).