Constitutional theory
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| Constitutional Law of the United States of America |
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| The constitutional structure |
| Civil Rights · Federalism |
| Executive branch · Separation of powers |
| Legislative branch · Judiciary |
| Famous Cases |
| Marbury v. Madison |
| McCulloch v. Maryland · Roe v. Wade |
| Dred Scott v. Sanford · Lochner v. New York |
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| Theory |
| Constitutional theory · Judicial review |
Constitutional theory is an area of constitutional law that focuses on the underpinnings of constitutional government in the United States. It overlaps with legal theory and democratic theory.
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[edit] Overview
Constitutional theory is primarily 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.[citation needed] This is in part because Marbury v. Madison, which established this judicial power in the early 19th century,[citation needed] has given the judiciary near-final authority on constitutional meaning.[citation needed]
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 democratic 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?
[edit] History of Constitutional Theory
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 Bickel'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 democractic 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.)
Modern constitutional theory owed much to Bickel's thinking, and much that has been written has had to grapple with the idea of the "countermajoritarian difficulty" in some way.[citation needed]
[edit] Important thinkers
The following is a partial list:
- Bruce Ackerman, Professor of Law, Yale University. Primary contributions: We the People: Foundations and We the People: Transformations.
- Jack Balkin, Professor of Law, Yale University
- Charles A. Beard, Professor of Sociology, New School for Social Research, Primary contributions: An Economic Interpretation of the Constitution
- Randy Barnett, Professor of Law, Boston University
- Alexander Bickel, former Yale professor who published The Least Dangerous Branch, The Morality of Consent, The Supreme Court and the Idea of Progress, among other works.
- Erwin Chemerinsky, Professor of Law, Duke University
- Ronald Dworkin, Professor of Law, New York University School of Law
- John Hart Ely, Scholar and former professor at several leading law schools.
- Alex Kozinski, Judge on the U.S. Court of Appeals for the Ninth Circuit
- Richard Posner, Senior Judge on the U.S. Court of Appeals for the Seventh Circuit
- Robert Post
- Antonin Scalia, Associate Justice of the Supreme Court. His ideas on originalism published in A Matter of Interpretation.
- Suzanna Sherry, Professor of Law, Vanderbilt University Law School. 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 Sunstein, Professor of Law, University of Chicago
- Laurence Tribe, Professor of Law, Harvard University Law School
- William van Alstyne, Professor of Law, College of William & Mary
