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The Good Society 11.2 (2002) 1-7

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The Constitution of the Living Dead:
Binding the Present to the Past

Twilight of the Living Dead?

Rogers M. Smith

The longer I have taught constitutional law, a span now approaching a quarter of a century, the stranger I have found the whole enterprise of governing via a written constitution, especially a hard-to-amend written constitution with a powerful constitutional court like that of the United States. Yet in that same quarter century, what was once a unique governmental structure has (with great variations) come to be widely imitated throughout the world, in national, regionally transnational, and incipiently global institutions. Ironically, many of those same developments clearly also have the potential to transform basic features of the American constitutional system rather radically in the decades ahead, perhaps by incorporating elements of it into one or more transnational governments of various sorts. Hence I am simultaneously increasingly struck by our system's peculiarity, impressed by its exemplary success, and piqued by the growing possibility that in at least some important respects it may not long endure.

The sense of strangeness I have about the American constitutional enterprise echoes the astonishment I had when I first read Marbury v. Madison early in my college years. Here was the cornerstone of the whole grand edifice of judicial review. And yet its textual foundations, though not absent, were so wafer thin; its logic, though not unreasonable, so eminently debatable; its motivations, though indeterminable, so patently questionable. How could a mighty temple have been erected on this brittle shale?

Still, I thought, it seems to have worked; so I focused on understanding how it worked and why it worked. That is also how I thought about the whole enterprise of written constitutionalism that is so central to the reasoning of Marbury (more so than any specific constitutional language). I soon learned our familiar mantras of the constitutional system's how and why. The point of a written constitution for a republic is to settle as clearly as possible a number of basic questions of governmental powers, procedures, and purposes so that we can both enable ourselves to get on with our public and private lives and curb arbitrary, unjust political conduct. For that enterprise to work, the written limits must have some sort of ongoing enforcer, particularly in a potentially anarchical federal system; but this is concededly a dangerous if necessary power. It may be most safely assigned to an independent judiciary, well versed in textual interpretation, structured and socialized to value and benefit from the rule of law, insulated from immediate political pressures, but "least dangerous" because it possesses neither purse nor sword. The ultimate popular rule that republican principles require is preserved by having both the original constitution and its [End Page 1] [Begin Page 4] amendments popularly authorized, through processes that demand greater deliberation and more widespread agreement than ordinary majoritarian decision-making (and thus are infrequently executed). The system endures because it provides both substantial, predictable stability and meaningful avenues for necessary changes. The appeal to constitutional texts serves both as a common set of terms and understandings that can bind together a diverse polity and as a reminder of the system's original principles and the elements that seem to have worked over time.

All readers of this essay will, like me, have been over all these arguments countless times, and I do not regard any of them as foolish. American constitutionalism, thus understood, is a political instrument that seeks to satisfy important but conflicting concerns, for continuity and reform, for empowerment and limitations, for shared memories and for new imaginings. Any such instrument will display shortcomings, often apparent contradictions, in practice.

Even so, as I've attended to modern constitutional debates and decisions over the past quarter-century, the whole business seems more and more peculiar to me. This past summer, for example, we constitutional scholars have argued extensively whether the Supreme Court was right to say in Bush v. Gore that the equal protection clause forbids the extraordinary recount procedures mandated...


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