Introduction

Written Constitutionalism as the American Project

A constitution is an account of the ways in which a people establish and limit the power by which they govern themselves, in accordance with the ends and purposes that define their existence as a political community. To the extent that a constitution identifies the first principles and ultimate ends of political life, it implicates questions of political and moral philosophy. Considered in this light, a constitution is normative, intended to prescribe what ought to be done by individuals and by the community they constitute for their mutual benefit. A constitution also has a practical and descriptive function: it indicates or discloses the institutional structures, forms, and procedures by which governmental power in a community is organized and the laws and rules of action that regulate the conduct of government. Tension between these dimensions of constitutional meaning — between normative standards and practical political reality — is reflected in controversy that often occurs in the life of a people over how they are constituted, or — what is the same thing — what their constitution is.

Conceived of as the problem of how to organize the political life of a people, constitutionalism is as old as political theory itself. Considered in historical terms, however, with reference to the language and discourse that are recognized as distinctive to the subject, constitutionalism is more a modern than an ancient phenomenon. Constitutionalism is synonymous with the rule of law, the idea that good government exists when a body of stable political rules and rights is applied impartially and equitably to all citizens. The rule of law is an ancient idea, but the discovery or invention of means to give it practical effect and institutional permanence, in ways that limit the power of the sovereign, is a development of modern times. The making of agreements between political leaders, such as occurred in the Glorious Revolution in England in 1689, and the writing of constitutions expressing the willingness of constituent groups in the community to accept a set of political rules, such as occurred in the American Revolution, were the decisive steps marking the emergence of limited constitutional government.1 Since the eighteenth century the adoption of a written constitution, replacing government based on customary and traditional authority, has been considered a necessary condition for limited government and the rule of law.

The broad significance and range of meanings associated with the concept of a constitution in modern political thought did not obtain in ancient and medieval usage. In Roman law, constitutio referred to a special law or ordinance of the emperor. Not until seventeenth-century England was the word "constitution" used to describe the structure and composition of the body politic, acquiring in the world of politics an implicitly normative connotation analogous to its use in accounts of the natural world.2 Reinforcing this association was the use of "constitution" to refer to fundamental law, meaning immemorial custom and the principles of reason, justice, and equity that constituted natural law.3

In the American colonies in the eighteenth century, "constitution" signified the design, structure, and composition of government. Colonial usage gave the word a normative connotation, proscribing or limiting the exercise of government power for certain purposes, and prescribing forms and procedures for the exercise of government power. Although in England many legal and political documents possessed constitutional significance, the constitution was the structure of political and governmental institutions, including the principles and practices that defined and regulated the relationship between institutions. It was customary and traditional, and thus it was prescriptive or normative by virtue of its customary character. By contrast, in the American colonies, owing in part to their settlement by means of charters granted by the crown and covenants formed by religious communities, a constitution came to be seen as a written document or text.

In an American constitution were collected the ends and purposes that defined a political community, as well as the institutional structure and procedures through which government was required to act. In the American Revolution, constitutions were authoritative because they were based on the consent of the people and because they were believed to embody fundamental law. As the people assumed sovereignty or had it claimed by revolutionary leaders on their behalf, constitutional historian William G. Andrews explains, "it became useful to inscribe on parchment the limits and procedures believed by them to be imposed by natural law on the governors.... The people wanted to have before them that which they were to interpret." Documentary constitutions eased the task of popular interpretation, making "the directions of the governed to the governors concrete and explicit, on the basic natural law questions." Constitutions provided standards for measuring the performance of governors by the governed.4

In the nineteenth century, acceptance of the idea of a written constitution as the fundamental law and framework of government led scholars to seek the origin of constitutionalism in premodern political thought. The closest equivalent was found in the notion of the "regime." This concept referred to the structure and distribution of government power in a manner reflective of the social composition of the community, including standards of reason, virtue, and justice that were the final cause of political life. The difference between premodern and modern constitutionalism was that the former was mainly customary and only incidentally documentary, while the latter was mainly documentary and incidentally customary. The great benefit of having a documentary constitution, it was believed, was to make practicable the enforcement of principles, norms, and rules limiting government. A customary or unwritten constitution, consisting of convention, practice, and usage, was thought to be not a real constitution because it was not enforceable against government.

But was it really possible to impose substantive limitations and procedural rules of action on government, in the same way a government imposes rules of action on individuals? This basic issue in modern constitutionalism is a problem of political theory. It can be understood, however, only in the light of historical inquiry into the practical consequences of conducting government and politics based on written constitutions.

That it would be difficult to limit government through written fundamental law was recognized at the outset. Facing Anti-Federalist opposition to the proposed constitution, James Madison in The Federalist, No. 37, discussed the problem of using ordinary language to organize and regulate political life. "[N]o skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces — the legislative, executive, and judiciary," Madison wrote. The most enlightened legislators and jurists were equally unsuccessful in delineating the several objects and limits of different codes of laws and tribunals of justice. "The use of words is to express ideas," he said, but there was obscurity and equivocality in all new laws, notwithstanding the deliberation and technical craft with which they were written. Even the meaning intended by God himself, Madison observed, when he "condescends to address mankind in their own language," was rendered "dim and doubtful by the cloudy medium though which it is communicated."5

Madison, in the idiom of his time, did not believe that "words are things." He was not a postmodernist ahead of his time who held that language constitutes reality. His remarks on language and politics came in a discussion of the difficulties faced by the Federal Convention and were influenced by the rhetorical strategy adopted to defend the Constitution in the ratification controversy. If Madison's comment is to be taken seriously as a reflection on the feasibility of the written constitutionalist project, his opinion on how the authors of the Constitution overcame the difficulties facing them should also be remembered. Observing the unanimity that finally prevailed in the convention, he wrote: "It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution."6

How to apply the Constitution so that it is an effective limitation on government has been the continuing challenge of American constitutionalism. In the new type of republican politics that followed adoption of the Constitution, political action was conceived of in relation to provisions of the constitutional text. If the principles of republican government were embodied in the document, fidelity to the text was the measure of fidelity to republicanism as the political creed of the nation. Yet partisanship, ideology, and political exigency threatened to transform textualism into pretextualism, making fidelity to the written constitution a ceremonial gesture. Invoking the constitutional document might serve as a justification for political action divorced from the principles and values of limited republican government.

What raises constitutionalism above the level of a naive trust in the power of written words to control political action is moral and philosophical conviction. Belief that the Constitution is good in itself, that its value is not merely instrumental, is necessary to its maintenance and preservation. Yet to the extent that this belief points beyond the documentary character of the Constitution it tends, paradoxically, to call into question the literal significance of the text. In the ratification controversy Alexander Hamilton acknowledged this feature of constitutionalism. Discussing the necessary and proper and supremacy clauses, he wrote: "it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same if these clauses were entirely obliterated as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government and vesting it with certain specified powers."7

The documentary text is an instantiation, a sign or symbol, of fundamental law. It expresses in modern form the view of classical philosophy that the "endurance of 'writings' provides the possibility of meeting the variability of human things by preserving wisdom in however diluted a form beyond the demise of the wise founder."8 In written constitutionalism the text is essential, but it is not, in itself, a generator of constitutionalism.9

If the text of a constitution is declaratory of the truths of political science or political philosophy, in what sense is it essential? Hamilton believed it was required by practical reason. Referring to the necessary and proper clause, he said it was written into the Constitution as a precaution, "to guard against all cavilling refinements in those [state government officials] who might hereafter feel a disposition to curtail and evade the legitimate authorities of the Union." On this and other cardinal points, Hamilton observed, the convention thought it best "to leave nothing to construction."10

It is possible that the social consensus supporting a written constitution will be so broad as to preclude controversy over its meaning, in which case the value of the document would be symbolic. This has not been true of the American Constitution. On the most essential matters, the meaning of the document has been subject to dispute. A premium has been placed on construction and interpretation of the text, and the outcome of public policy disputes has depended on the meaning of specific constitutional principles and provisions. Although acceptance of the Constitution expresses a consensus that peaceful constitutional controversy is better than violent dispute resolution, interpretation of the text has been a source of conflict that at times has tested the depth of the public's attachment to the Constitution as fundamental law.

That the introduction of textual constitutionalism into American politics would make the rule of law an operational reality, substituting peaceful constitutional change for violent revolutionary upheaval, was perhaps a reasonable inference to be drawn from republican political experience. That it would eliminate conflict over the scope and purpose of government in the American Union was an unrealistic expectation that the practice of constitutional politics showed to be false.

The problem was that basic constitutional principles were indeterminate, or appeared so, because their meaning depended on interpretation of the text in which they were embodied. Yet, while the imperfection and ambiguity of language were recognized, this was not viewed as a fundamental defect in the constitutional order. Even when controversy over the meaning of the Constitution broke the bonds of union during the Civil War, the practice of written constitutionalism was not abandoned. The crisis of the Union meant that the deepest political questions — in this case, nation making and state building — are constitutional problems that demand the prudence of the statesman rather than the jurisprudence of lawyers.

It was after the settlement of war issues in the Reconstruction amendments — a settlement that confirmed the importance of written constitutionalism — that the founders' project came under attack. Critics complained that constitutional formalism and ritualistic devotion to the document prevented the country from coming to grips with the realities of modern society. To structure political controversy on the basis of arguments from the written Constitution, it was said, introduced ambiguity, inconsistency, and legalistic sophistry into public life. In the twentieth century, as the essays in this book show, these arguments developed into a practical and theoretical challenge to written constitutionalism.

This tradition of criticism finds expression in a recent study of cultural constitutionalism that presents a wealth of data describing public ignorance and lack of understanding of the Constitution. Historian Michael Kammen attributes this condition to the willingness of public officials, including judges, to change their constitutional arguments for the sake of political expediency. Such behavior opens them to charges of hypocrisy and permits their words to be manipulated for partisan purposes, resulting in legal uncertainty and often outright confusion.11 The people's lack of constitutional knowledge exists, however, within a framework of constitutional consensus. This is a political good and is directly related to written constitutionalism. Kammen states that "the basic pattern of American constitutionalism" is "one of conflict within consensus."12 This agreement is manifested in "respect for the Constitution and the system of government it created," which is dependent on written constitutionalism. The tradition restrains the behavior of most citizens, especially public officials. We may not like the constraints that respect for the written Constitution imposes, Kammen observes, but we accept them.13

Although expressing doubts and reservations, critics like Kammen are in the end forced to recognize the practical value of the written Constitution. Nevertheless, the argument that cultural constitutionalism is the basis of the American polity is the most recent expression of the tendency toward "realist" criticism that may be said to be inherent in the project of written constitutionalism. As has been true from the outset, the question can always be asked whether the application of the text Constitution to public policy making and the actions of government is consistent with the principles and norms of republican government. This is an essentially political question. If the judgment is negative, the authority of the written Constitution is called into question and is subject to being superseded by an alternative constitutional model. In twentieth-century American politics, this alternative is the idea that beneath forms of government there exists an unwritten constitution that is a true description of the ends, purposes, and values of the political community.

Although written constitutionalism emerged as a reaction against the unwritten English constitution, there is a sense in which the notion of an unwritten constitution is not necessarily incompatible with a written fundamental law. Constructions of the written constitution in the form of statutes, executive orders, and judicial decisions elaborate the meaning of the document. Assuming consistency with the text, they might be thought of as an unwritten, in the sense of uncollected, expression of the written fundamental law as applied. As constructions and interpretations proliferate and become more far-reaching, however, their connection to the text may become tenuous, until the point is reached where they warrant a different description. In contradistinction to the written constitution, they can be understood as an unwritten constitution, similar to judicially evolved common law in English constitutional history.

The concept of the unwritten constitution has generally been appealed to in times of political crisis as a means of challenging the established interpretation of the written Constitution. In 1860 the controversy over the nature of the Union was at one level a dispute over the meaning of the constitutional text: was state secession a valid construction of the document? At a deeper level the controversy reflected uncertainty and ambiguity about how the American people were constituted as a political community. One could formulate the problem by asking what the real constitution of the country was, and it is noteworthy that the first systematic accounts of American republicanism based on the idea of an unwritten constitution were offered at this time.14 During the Civil War and Reconstruction, moreover, judicially supervised textual constitutionalism was subordinated to political-branch construction of the principles of republican government and the rule of law.

From the 1880s to the 1930s the concept of the unwritten constitution acquired prominence in American political science. As discussed in this book, it was employed by progressive and liberal reformers to attack conservative legal doctrines predicated on written constitutionalist orthodoxy. Criticism of laissez-faire constitutionalism as mechanical and formalistic rested on legal-realist assumptions, referred to as constitutional realism, that culminated in Franklin Delano Roosevelt's plan of 1937 to pack the Supreme Court. Thereafter, the axioms of liberal jurisprudence were known as "living Constitutionalism," a concept derived from Oliver Wendell Holmes's famous assertion that the life of the law is experience, not logic. The rhetoric of living constitutionalism was compatible with the notion of "process jurisprudence," the middle ground that New Deal lawyers staked out between conservative declaratory jurisprudence based on orthodox written constitutionalism and radical legal realism that dismissed constitutional textualism as irrelevant to modern government.15 In the long run, however, the logic of living constitutionalism was fundamentally antagonistic to the founding project of written constitutionalism.

Claiming for their generation the right to shape constitutional law in accordance with contemporary needs, New Deal lawyers at first justified federal regulatory schemes under doctrines of national authority derived from Marshall Court decisions. When Roosevelt attempted to increase the size of the Supreme Court and consolidate administrative authority in the executive branch, however, he scorned the written constitutionalism of the founding.16 Regarding the Constitution as "a stumbling block to be circumvented," Roosevelt treated constitutional arguments as a pretext for advancing partisan and ideological ends.17

The long-term result of the New Deal was to replace limited-government written constitutionalism with unlimited-government living constitutionalism. As a public philosophy, New Deal liberalism held that in modern industrial society it was necessary to limit economic liberty and property rights in order to promote the public interest. Old doctrines of constitutional law were thrown out and new ones were adopted by the Supreme Court that reinterpreted republican government in statist terms of social welfare and security. Statist liberalism was rationalized in the metaphor of the living Constitution, defining the fundamental law as an adaptive, growing social organism. Superficially and formally a written document, the Constitution was really statutes, executive and administrative orders, judicial decisions, cultural attitudes and values, and public opinion and beliefs, all evolving in response to social forces and political events.

Living constitutionalism appealed to the idea of the unwritten constitution. The real constitution of the American people was a sovereign national government, centered in a chief executive with authority to take any action necessary to promote the public interest, provide social welfare, and protect national security. While rejecting laissez-faire judicial doctrines, living constitutionalism retained judicial supervision of constitutional law, ostensibly as an interpretation and affirmation of the text Constitution. Living constitutionalists used the forms and texts of the written Constitution rhetorically to legitimate the regulatory-welfare state.

From 1937 to 1960 living constitutionalism provided the doctrinal framework of statist liberalism. The famous Carolene Products footnote of 1938 was later held up as a prophetic indication of the course of living constitutionalist jurisprudence after World War II.18 The outstanding example of judicial policy making in the service of living constitutionalism in this period was the school desegregation decision, Brown v. Board of Education (1954). Deeply controversial at the time, it was later eulogized as a profoundly moral decision that changed the course of race relations in the United States. The most significant result of the case may have been to encourage judicial activism. As the civil rights revolution proceeded, many lawyers, judges, and government officials concluded that courts should be a major institution for reforming American society.

Supreme Court decisions in the 1960s enacted policies in the areas of race relations, criminal procedure, religion and education, speech and press freedom, legislative apportionment, and welfare rights. The decisions were viewed by the justices as the logical outcome of interpretation of the written Constitution, the traditional means by which the fundamental law was adapted to the changing needs of society. When conservative justices who were expected to show more judicial restraint continued the practice of judicial activism in the 1970s, judicial decision making was more readily acknowledged as legislative in nature. Evidence of this realist view of the judicial function was Roe v. Wade (1973), the abortion rights case. The decision was criticized even by liberal scholars as an exercise of judicial fiat not based on any principle found in the text of the Constitution.19

The legitimacy of judicial review rested on the assumption that the decisions of the Supreme Court were applications and interpretations of the written Constitution. In Cooper v. Aaron (1958), the Court went so far as to say that it was "supreme in the exposition of the law of the Constitution" and that its interpretation was "the supreme law of the land." Always subject to questioning, the presumed identity between Court and Constitution began to break down in the aftermath of Roe v. Wade. With increasing candor, constitutional law was described as distinct from, perhaps not remotely related to, the text of the Constitution. To use a legal realist analysis, living constitutionalism manipulated the document as a pretext for policy making based on the ideology and subjective will of Supreme Court justices.

Judicial activist policy making by the Court under Chief Justice Warren Burger provoked a conservative reaction in constitutional theory. It took the form of a demand for a jurisprudence of original intent, based on the text of the Constitution and the original understanding of its framers and ratifiers. The reassertion of written constitutionalism led defenders of living constitutionalism to appeal explicitly to the idea of the unwritten constitution as a justification of judicial activist policy making.20 Invoking moral philosophy as a source of authority, liberal commentators advocated "noninterpretivism" as a method of adjudication that dispensed with the text of the Constitution. In this theory of judicial review the text Constitution was a rhetorical symbol used to persuade the public of the legitimacy of judicial policy making.

Despite conservative warnings that an excess of judicial activism would destroy the Court's legitimacy, judicial legislation expanded. It was protected by the idea, accorded virtually dogmatic status in the legal culture, that the Court had exclusive authority over constitutional meaning. Seeing themselves as assisting the Court, "noninterpretivist" scholars fashioned constitutional law doctrines that by their own admission were unrelated to the text of the Constitution. The result was judicially managed policy making divorced from the Constitution.

Judicial activism was seen as inherent in the development of constitutional law based on a written Constitution consisting of abstract concepts, a "thing of wax" to be shaped by judicial interpreters for partisan and ideological ends.21 This perception of constitutional law was given a more up-to-date theoretical justification in postmodernist epistemology, which assumed that language has no intrinsic meaning and words do not correspond to real things. Postmodernist legal theory rejected the distinction between what was in the Constitution and what was not.22 On this theory, criticism of judicial activism as a rejection of written constitutionalism could be dismissed as a partisan attack on an independent judiciary, as in the controversy over Judge Robert Bork's nomination to the Supreme Court in 1987.

Liberal attacks on originalist jurisprudence express at once intellectual disdain for written constitutionalism and fear that originalism will win popular backing and political support. This ambivalent attitude reflects the fact that the text Constitution, contrary to postmodernist legal theory, has real meaning and practical import. It exacts costs from political and governmental actors, limits government, and shapes and directs political action.

The configurative effect of the Constitution depends in part on the document's symbolic value. Not sharing postmodernist philosophical assumptions, citizens believe that words have meaning and that the written Constitution embodies principles, forms, and procedures that define republican government. Citizens regard the Constitution as paramount and binding law. Treating it as a textual instantiation of fundamental law, they accord it preeminent status as the proximate ground of legitimacy in American government. Citizens, the people as constituent power, believe that the principles and forms of the Constitution are both practically useful and intrinsically valuable in the conduct of political life. From this standpoint, constitutional construction is a basic feature of political life that affirms the value of the text Constitution.23

Whether the American people in the late twentieth century have the same constitution as when they assumed their existence as an independent nation is a question of practical as well as historical value. It is purely significant that the written Constitution of 1787, as amended, continues to be the object of discussion, analysis, and argument in American government and politics. Precisely what this fact signifies, however — whether it means that the written Constitution is a normative fundamental law that limits government — is controversial. As the essays in this book indicate, this question can be approached analytically under the concepts of written and unwritten constitutionalism. More perhaps than at any time in the twentieth century, constitutional law is characterized by tension between these theoretical models.

The principal features of American national government in the 1990s are a presidential establishment and judicial hierarchy that claim authority to decide any issue that arises in political and social life, no matter how local it might appear. As a practical matter, the question is whether the executive and judicial authority can be limited to the ends, principles, and forms of constitutional government.

To place this problem in the framework of the unwritten, living constitution raises what appear to be insuperable difficulties. Under this doctrine any arrangement of the parts and powers of government that may exist — anything government does — although politically controversial, is by definition constitutionally legitimate. The idea of a constitution as a standard of legitimacy and limitation on government loses its meaning. Conceived of in this way, a constitution is at best an exercise in prudence, at worst an acquiescence in government power.

Historically and practically, the founding project of written constitutionalism better meets the republican requirement for a fundamental law that limits government. The written Constitution provides an account of the ends, principles, and forms of government that is as relevant to contemporary political life as it was to politics in the founding period. The power of the modern presidency, for example, is a threat to republican government. Under the principles of written constitutionalism, however, the executive power can be construed to impose limits on presidential government.24 The same can be said of government by judiciary. No warrant for the kind of judicial legislation and policy making that exists today can be found in the written constitutionalism of the republican founding.

Presidential and judicial authority, or any other concentration of power that might threaten limited republican government, can be described as the real constitution of American government produced by twentieth-century historical forces Under the theory of the unwritten living Constitution, description becomes prescription, conferring legitimacy and normative sanction Considered from the standpoint of the citizen or government official, however, legitimacy claimed in the name of the unwritten constitution is a counterfeit authority The better approach to the problem of limited government is critically to make an account of existing institutions and practices in the light of the written Constitution.

Constitutionalism, in the acceptation of the term required by the internal perspective of the citizen, insists on fidelity to the constitutional text It does so not because the citizen believes that invoking the words of the Constitution, as a shibboleth, will by itself control political and governmental action What the citizen-constitutionalist knows, rather, is that, supported by republican conviction about the value of self-government, the written Constitution of 1787 supplies the rule of law that is indispensable to the maintenance of free, popular, limited government.

Notes

1 Barry R. Weingast, "The Political Foundations of Democracy and the Rule of Law," American Political Science Review 91 (1997), 245-63 See also Charles Howard McIlwain, Constitutionalism Ancient and Modern, rev. ed. (Ithaca, N. Y. Cornell University Press, 1947).

2 Gerald Stourzh, "Constitution Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth Century," in Conceptual Change and the Constitution, ed. Terrence Ball and J. G. A. Pocock (Lawrence University Press of Kansas, 1988) pp. 37-38.

3 J. G. A. Pocock, The Ancient Constitution and the Feudal Law English Historical Thought in the Seventeenth Century (New York W. W. Norton, 1967), pp. 48-51, J. W. Gough, Fundamental Law in English Constitutional History (Oxford Oxford University Press, 1955).

4 William G. Andrews, Constitutions and Constitutionalism, 3d ed. (Princeton, N. J. D. Van Nostrand, 1968), p. 21.

5 The Federalist Papers, intro by Clinton Rossiter (New York New American Library, 1961), pp. 28-29.

6 Ibid., pp. 230-31.

7 Ibid., No 33, p. 202.

8 Paul Stern, "The Rule of Wisdom and the Rule of Law in Plato's States man," American Political Science Review, Vol. 91 (1997), 271.

9 Andrews, Constitutionalism, p. 26.

10 The Federalist, p. 203.

11 Michael Kammen, A Machine That Would Go of Itself The Constitution in American Culture (New York Random House, 1986), p. 12.

12 Ibid., p. 29. Italics in original.

13 Ibid., p. 123.

14 Sidney George Fisher, The Trial of the Constitution (Philadelphia, 1862), Orestes Brownson, The American Republic Its Constitution Tendencies and Destiny (New Haven, Conn College and University Press, 1972, orig pub 1866), John C. Hurd, The Theory of Our National Existence (Boston Little, Brown, 1881).

15 G. Edward White, The American Judicial Tradition Profiles of Leading American Judges, expanded edition (New York Oxford University Press, 1988), pp. 292-316.

16 John A Rohr, To Run a Constitution The Legitimacy of the Administrative State (Lawrence University Press of Kansas, 1986), pp. 111-70, Sidney M. Milkis, The President and the Parties (New York Oxford University Press, 1993).

17 David E. Kyvig, Explicit and Authentic Acts Amending the U. S. Constitution 1776-1995 (Lawrence University Press of Kansas, 1996), p. 306.

18 In footnote 4 of U. S. v. Carolene Products Co (1938), Justice Harlan Fiske Stone proposed a judicial policy of deference to legislative policy making in social and economic matters, as well as critical judicial scrutiny of legislative policy making in the area of civil liberties, with a view toward protecting the rights and interests of minority groups In the 1960s the concept of civil rights was expanded and transformed into a policy of social and economic redistribution in the name of affirmative action.

19 John Hart Ely, "The Wages of Crying Wolf A Comment on Roe v. Wade," Yale Law Journal 82 (1973), 947.

20 Thomas C. Grey, "Do We Have An Unwritten Constitution?" Stanford Law Review 27 (1975), 703-18.

21 Leonard W. Levy, Original Intent and the Framers Constitution (New York Macmillan, 1988), pp. 54, 342.

22 J. M. Balkin, "The Rule of Law as a Source of Constitutional Change," Constitutional Commentary 6 (1989), 21-27 A general work of constitutional commentary illustrating the postmodernist approach is Sanford Levmson, Constitutional Faith (Princeton, N. J. Princeton University Press, 1988).

23 Standing in sharp contrast to citizens' respect and reverence for the Constitution is a cynical academic attitude, seen in a recent discussion, "Constitutional Stupidities Symposium," Constitutional Commentary 12 (1995), 139-225 The symposiasts express irreverence, impatience, and disdain for the Constitution Focusing attention on "the primary imperfections of our current constitutional scheme," they state that the symposium "is not meant to be the last word on the topic of constitutional stupidity," but is intended as "the initiation of a continuing conversation." Ibid., pp. 140-41.

24 Louis Fisher, Presidential War Power (Lawrence University Press of Kansas, 1995).


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