Wednesday, September 8, 2010

Fritz on State Constitutions as American Constitutionalism

Foreword: Out from Under the Shadow of the Federal Constitution: An Overlooked American Constitutionalism has just been posted by Christian G. Fritz, University of New Mexico School of Law. It is forthcoming in the Rutgers Law Journal. Here's the abstract:
Most scholars of constitutional law and history equate American constitutionalism with the Federal constitution. This spotlight on the Federal constitution rests on a series of modern assumptions that elevate the status of the Federal constitution over the rich history of state constitutions, and inevitably neglect the central constitutional tenet of the American Revolution - the sovereignty of the people. Viewing American constitutionalism from the perspective of the constitutional legacy of the Revolution suggests a modified paradigm in which state constitutions play a critical role in our understanding the full meaning of American constitutionalism.

The idea of a collective sovereign introduced a tension and implicit challenge to one of the most sacrosanct constitutional values that we take for granted today - the rule of law as written and enforced by elected officials. The acknowledgment of sovereignty linked to the authority of the people opened up the possibility that the collective sovereign might be expressed without such constraints. The claims for a broader popular authority - reflected in the slogan of vox populi, vox dei (the voice of the people is the voice of God) and its corollary commitment to the rule of raw majoritarianism would today be rejected out of hand as inconsistent with our notion of codified proceduralism as one of the cornerstones of the modern notion of the rule of law. Such a perspective was hardly so clear, unequivocal, and uncontested during the early years of our Republic. Initially, the powerful constitutional idea and vocabulary of a collective sovereign as often expressed in the Post-Revolutionary period could (and did) push and pull people in various ways and produced a far more complicated calculus than we are willing to entertain today. Nonetheless, the historical experience with written constitutions in America suggests that the rule of law, as written and administered by representatives of the people, was not so inevitable to all Americans of earlier generations, particularly among those willing to extend the logic of the sovereignty of the people to its fullest extent.

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