From Roots to Branches and Back: Popular Sovereignty Within Constitutional Theory

The editors of this symposium invited me, along with others, to comment on the state of constitutional theory. More specifically, I have been asked to evaluate how well constitutional theory as a field assesses, studies, and crafts scholarship related to the constitution of good regimes. I have also been encouraged to suggest improvements in the scope, methods, and/or conception of constitutional theory.

Preliminarily, I would like to emphasize the importance of distinctions among (1) efforts to understand particular constitutions, constitutional institutions and practices, and constitutionalism more generally; (2) the derivation or defense of appropriate criteria (such as features of the good society) with which to evaluate constitutional norms and practices; and (3) reliance on such criteria to assess the merits and demerits of particular constitutions, other features of existing or conceivable constitutional orders, or norms and practices of constitutionalism as such. In my view, constitutional theory embraces each of these forms of inquiry. To be sure, they overlap in practice; and this essay explores issues that cut across this trichotomy and thus bridge various dimensions of the queries posed above. But it remains important not to collapse these three branches of constitutional theory into one another — or to obscure relationships among them. On the contrary, the viability of each depends on capacities to maintain analytic distance among these distinct forms of inquiry.

As examples, constitutional theorists have sought to understand features of particular constitutions or constitutional orders in ways that have been severable in important ways from assessment of their goodness. Similarly, constitutional theorists have usefully studied historical understandings of principles of constitutionalism while holding open whether efforts to institutionalize those principles have led to beneficial and/or harmful results. Conversely, individuals have developed models of constitutionalism and of what constitute features of the good society without seeking to advance them in practice.

These distinct branches of inquiry have, of course, been joined. Among other things, constitutional scholars have drawn upon and affirmed historical understandings of principles of constitutionalism in connection with developing normative models of politics. Those models have, in turn, provided critical perspectives for assessing particular regimes. Stated differently and more generally, empirical analysis has enriched normative theory, while the latter has guided and informed evaluation of insights resulting from the former.

Thus while I accept the invitation to comment on how well constitutional theory assesses, studies, and crafts scholarship related to the constitution of good regimes, I view such an inquiry as distinct and potentially divergent from the one encouraging suggestions regarding the scope, methods, and/or conception of constitutional theory. Constitutional theory has important roles in studying constitutions and constitutional institutions even if they fall well short of constituting the good society. Similarly, it is worth studying constitutionalism as a distinct form of politics even if it does not ensure goodness, justice, or beneficial outcomes otherwise conceived.

Authority and Popular Sovereignty

Authority and popular sovereignty are central concepts within theories and practices of constitutionalism. Particular constitutions presume to have political authority; and their efficacy in practice is closely dependent on the acceptance of such presumptions at least by those purportedly subject to their authority. More specifically, the text of the U.S. Constitution proclaims itself "supreme law"; and citizens, governmental officials, and other political actors both within and outside the polity widely regard the Constitution as having such authority (even as there is serious disagreement about its character, what it includes, and about the meanings and implications of its norms).¹

The U.S. Constitution also serves extra-legal and non-legal functions. Accordingly, its authority extends beyond its status as "supreme law." For example, citizens and other persons have constructed and continue to construct political identities with reference to that Constitution. It is authoritative insofar as it facilitates these processes.² It is also a means of pursuing other ends with authority independent of that established and maintained by the Constitution itself. Among those ends are principles of constitutionalism and broader standards of political morality.³

Within the United States and elsewhere, "the people" are among those presumed to have constitutional authority, perhaps even ultimate (worldly...