When Political Figures Reject Constitutions

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1 Response

  1. Aaron Walker says:

    Hey Dave,

    I see you have found a nice way to soften Bruce Ackerman’s somewhat radical theory, by saying Civil Rights is “functionally constitutional.” And it was nice to see you start blogging here.

    As to your question, there is an additional issue, which is to what extent do people feel they are turning over this power to a political body. Let’s be blunt, here (you know I never held my tongue in Ackerman’s class). There was a time when the Supreme Court said its sole job was to read and interpret the constitution as written. Now I am not talking reality, here, just perception of reality. And that pronouncement–that they just interpret the thing as written–was accepted by most people as true. At this point of time, then, it then creates a certain predictability in outcomes, or at least the belief that there is predictability in outcomes.

    But since then the courts have declared more and more that they are not going to stick to the four corners of the constitution, and the notion that judges do not merely interpret the constition as written (regardless of whether they should) has become more and more common.

    In that environment, then, its harder to convince people to go to constitutionalism. In the case of a despot, you are then truly giving up your power to a body of people, who might decide against you, EVEN IF the actual constitution is on your side. In the case of a minimally democratic nation, its hard to explain to people why the decision should be taken away from the people and given effectively to 9 old men and women. It starts to make the American Supreme Court look more like the third chamber of congress, which leads to the question: do we really neeed a third chamber?

    It’s just something to think about as you do your research.