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Introduction
- Johns Hopkins University Press
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Introduction To make a government requires no great prudence. Settle the seat of power, teach obedience: and the work is done. To give freedom is still more easy. It is not necessary to guide; it requires only to let go the rein. But to form a free government; that is, to temper together these opposite elements of liberty and restraint in one consistent work, requires much thought, deep reflection, a sagacious, powerful, and combining mind. Edmund Burke The great innovation of written constitutionalism, it is often asserted, is that it brought fundamental law down to earth by making it legally binding in courts of law.1 Casting his eye at this great innovation, Edward Corwin noted that, paradoxically , prior to this development “the supremacy of constitutions was a real barrier to their legality.”2 We have taken this lesson to heart. So strong is this disposition in our polity that our understanding of constitutionalism begins from the axiom that the judiciary is “the one institution above all others essential to the preservation of the law.”3 This sentiment, perhaps not surprisingly, Wnds expression in the Supreme Court’s insistence that our attachment to constitutionalism is inextricably bound up with our faith in the Court:“If the Court’s legitimacy should be undermined,then,so would the country be in its very ability to see itself through its constitutional ideals.”4 In this way, Chief Justice John Marshall’s famous insistence in Marbury v. Madison that “it is emphatically the province and duty of the Court to say what the law is”5 has come to be seen as articulating the unique position of courts in maintaining constitutional government.6 Judicial review is seen as the check that maintains the Constitution. Far more than deciding the case before it in accord with the Constitution (judicial review), the Court acts as the sole expositor and enforcer of constitutional meaning, its opinions authoritatively binding on the Congress and the president (judicial supremacy). If it were otherwise, constitutional government The Madisonian Constitution would be rendered meaningless. Thus, while the conventional understanding of judicial review—which implies judicial supremacy—is frequently mentioned in the same breath as James Madison’s separation of powers, they point to divergent, if not contradictory, conceptions of constitutionalism. This book oVers a Madisonian vision of American constitutionalism. Drawing on the thinking and practices of James Madison—often dubbed the “father of the Constitution” and who, we should recall, was not a lawyer—I argue that American constitutionalism is primarily about countervailing power and not about the legal limits enforced by courts.7 Put another way, the essence of the Constitution as fundamental law is its foundational division of power and authority and not its legality. This political division provides the constitutional order within which the constitutional text can take shape as law. Thus, while the Constitution is legally binding, precisely because it founds the political order, it cannot easily be enforced as ordinary law. The central question for Madison was how to make constitutional text binding. This book examines the Madisonian solution to this problem and its subsequent import for American constitutional development. It oVers an argu ment about the nature of the Constitution that takes its bearings from Madison’s political science, which is put forth as a corrective to our tendency to view the Constitution from the lens of the Court.8 It then turns to how the diVusion of power between the branches has brought the word of the Constitution to life.9 The result of this Madisonian solution is that, in practice, the Constitution does not Wnd coherent expression as a whole. This is so even when the diVerent branches of government oVer and act from an understanding of the whole Constitution. These branches often oVer competing conceptions of constitutional authority and mean ing, which, at times, turn on diVerent conceptions of “what” the Constitution is.10 And these constructions have inevitably shaped how we see the Constitution. Let me bring this down to earth, which is precisely what I argue the Madisonian Con stitution does for fundamental law. The Madisonian vision begins from the nature of the written Constitution, founded on the natural rights and popular sovereignty of the people. But the Con stitution is not an act of writing alone.11 The written constitution calls forth insti tutional forms that are central to maintaining it as fundamental law.12 Because the written Constitution does not speak for itself, if not properly contrived, as Madi...