University of Transnational Business Law

Constitutionalism

by Larry Alexander


I. What are Constitutions?

Constitutionalism refers to the practice of establishing the society’s basic laws. Those laws usually form the framework for organizing the government, set forth the procedures and powers attached to the various governmental institutions, and establish various rights of the citizenry. The basic laws that are a society’s constitution are not, however, distinguished from nonconstitutional laws by performance of these functions. Nonconstitutional laws can and often do organize the government, set forth government powers, and establish rights, and constitutions often deal with matters outside these categories. Rather, the line between constitutions and nonconstitutional law is best drawn by reference either to where the laws stand in the chain of legal validity or to how entrenched the laws are against change.

Constitutions are the highest laws in the chain of legal validity in the sense that no law inconsistent with a constitutional law is legally valid, whereas the constitution’s legal validity rests on its acceptance as fundamental law. (For this reason, because the validity of all laws turns on consistency with the constitution, all laws’ status as laws rests ultimately on acceptance.)

Constitutions are also usually more entrenched against change than are nonconstitutional laws. The reason for this should be obvious. For were laws lower in the chain of legal validity more entrenched than higher level laws, their entrenchment could be circumvented by first repealing the less entrenched higher level laws that authorize the entrenchment and then repealing the now unentrenched lower level laws. (Note that for constitutions that are amendable—not totally entrenched—the amendment process might be regarded as higher in the chain of legal validity than the other parts of the constitution.)

If constitutions—and thus all laws—ultimately trace their authority to their acceptance, how is it possible for people to accept the authority of constitutions promulgated perhaps generations ago and that contain, as all constitutions inevitably will, provisions that people will perceive as unfortunate or even perverse? No constitution will be anyone’s ideal constitution, except perhaps its author’s.

Yet, as fragile as the necessity of acceptance would appear to render constitutions and the laws they validate, the appearance is misleading. For if the order the constitution establishes—its authoritative settlement of the inevitable controversies over what must be done—is preferable to anarchy from everyone’s perspective and is the best settlement obtainable from everyone’s perspective, then it may prove quite durable despite its many flaws.

Do constitutions need to be written? Do they need to be promulgated and adopted at some specific point in time? The United States Constitution is, of course, both a written document and one that was promulgated and adopted at specific times. But constitutions can be unwritten, and unwritten constitutions can come to be constitutions by virtue of official practices developed over time, making the date on which such practice-based norms attained constitutional status uncertain. Unwritten constitutions, the status of which depends completely on official practices, are not entrenched by reference to specific amendment procedures, but solely by reference to the degree of resistance of the constituting official practices to change over time.
II. Constitutional Rules, Standards, and Principles

Constitutional provisions, like all legal norms, can be either rules or standards, and many constitutional provisions (and many nonconstitutional laws) are partly rule and partly standard. Rules are determinate norms that are understandable by those whose behavior the rules seek to control without regard to the values they hold or how they believe those values apply. Rules settle matters that otherwise might be controversial due to disagreements about facts and values.

Standards, on the other hand, are norms that leave matters unsettled. They require those to whom they are directed to engage in first-order practical reasoning to determine what is best to do under the circumstances. Those circumstances include the existence of rules and the matters those rules have settled. In other words, standards require first-order practical reasoning within the interstices of the rules.

Many believe that there is a third type of constitutional (and nonconstitutional) norm: the legal principle. Unlike rules, legal principles are not determinate and have no algorithmic formulation. They require controversial “weighings” to ascertain when and how they apply. And unlike standards, which require consulting a non-posited, pre-existing moral order for their application, principles owe their existence and weights entirely to their promulgation.

Although many prominent constitutional theorists are proponents of legal principles, and although many jurists and lawyers claim to find such principles in various constitutional texts, some—including this author—are skeptical that principles as described above can actually exist. The controversy over principles turns on whether “weight” can be posited. Complex algorithms can be posited, but these are rules. And there may be moral principles that have “weight,” but these do not owe their existence to human promulgation. So if it is asserted that a constitution contains the “principle” of federalism, or of separation of powers, or of freedom of expression—and if one doubts that such principles are pre-existing moral principles—there is reason to be skeptical. For arguments about how such principles apply—about their “weights”—would seem to require an ontological truthmaker that is nonexistent.
III. The Authority to Settle Disputes Over the Constitution’s Meaning

As previously stated, one important function of constitutions is “constituting” the government—creating its institutions and offices, its procedures and powers. For obvious reasons, it is best to do so through rules rather than standards, as rules authoritatively settle controversies while standards leave them unsettled. And to the extent the constituting parts of the constitution contains standards, it will be important for whatever institution has the authority to do so to translate those standards into determinate rules—to “rulify” the standards. A society can abide lack of settlement of controversial matters and thus standards in many domains, but not in the domain of its basic rules of the game. If, in the United States, we could not by reference to determinate rules ascertain who was President, who was elected to Congress, who was on the Supreme Court, or when a bill had become law, we would be threatened with anarchy.

Even if a constitution consists primarily of rules, controversies over its application will still arise. The meaning of the rules may be less than completely clear in some of their applications. Or there may be disputes over the facts on which the rules’ applications turn. Or they may be lacuna not covered by rules and left to be resolved through inherently controversial standards. In such cases of constitutional controversy, there will be a need for some institution’s having the ability to settle the matter authoritatively. The ability to effect authoritative settlement does not, of course, suggest infallibility. The institution with such supreme settlement authority may misinterpret the constitutional rule in dispute, apply the rule incorrectly to the facts, or engage in flawed first-order practical reasoning under a standard. In such a case, there will be a conflict between what the constitution really requires and what the institution with supreme settlement authority has declared the constitution requires. If, however, that institution really does possess supreme settlement authority, then its ruling will trump the constitution, correctly interpreted and applied.

In the United States, the Supreme Court is regarded as possessing supreme settlement authority. It is debated whether that authority comes from the written constitution itself or is instead an unwritten constitutional norm that was asserted in practice and accepted. It is also debated whether the Court’s settlement authority extends beyond the particular cases that the Court resolves and governs all future cases (until the Court changes its mind). The Court itself takes the latter view. And if the people accept the Court’s view of the authority of the Court’s precedents, then the people will have accepted a method for constitutional amendment other than the method prescribed in the constitution itself, namely, amendment through a mistaken constitutional decision that is then deemed to be supremely authoritative until overruled by the Court itself (or by a constitutional amendment of the constitutionally-prescribed type).

What is clear, however, is the desirability of settlement of constitutional controversies, at least in the domain of basic institutions, procedures, and powers. If the constitution contains standards, unclear rules, or rules whose applications turn on debatable facts—and all constitutions of any consequence will—then an institution with the authority to settle constitutional controversies will be necessary. If the constitution itself fails to designate that institution, practice under the constitution will probably do so.
IV. Constitutional Rights: The Possibilities

Constitutions also set forth various rights. There are two ways they may do this.

First, a constitution may create a right through a determinate constitutional rule. If it does so, it does not matter whether there is a moral right corresponding to the constitutional right. For the latter is solely the product of a posited constitutional rule. In the United States Constitution, it is likely that the right against self-incrimination—at least as it was originally intended—and the right to a jury trial have no counterparts in morality. And even if there is a moral right of freedom of expression, it is quite likely that the First Amendment’s “freedom of speech” was intended to be a narrow rule proscribing requiring licenses prior to speaking rather than invocation of the more general moral right.

Second, a constitution may incorporate by reference real moral rights. Many believe that various provisions of the United States Constitution were just such incorporations by reference of rights that exist independently of their constitutional mention. Freedom of speech, free exercise of religion, and equal protection are a few of the usual candidates.

There are three aspects of constitutionalizing by reference real moral rights that deserve mention. First, if real moral rights are incorporated into a constitution so that they determine the legal and not just the moral validity of other laws, they must be “domesticated.” What I mean is that as constitutional rights, they must be deemed consistent with the other parts of the constitution—its various rules regarding structures and specific rights—even if as real moral rights, they are quite possibly inconsistent with those other parts of the constitution. And similarly, as constitutional rights, moral rights must be deemed consistent with the pronouncements of their content by whatever institution has supreme legal authority—in the United States, the U.S. Supreme Court. If real moral rights were not domesticated in these ways, then neither the supreme legal authority’s decisions nor the specific rules in the constitution would be thought to have supreme legal authority in the eyes of those who thought such rules and decisions to be inconsistent with real moral rights. Put differently, unless in incorporating real moral rights into the constitution they are domesticated by subordinating them to the other parts of the constitution and to the supreme legal authority’s decisions, the inevitable controversies over what real moral rights require would undermine the settlement function of the constitution.

The second point about a constitution’s incorporation of real moral rights is related to the first: A decision is required regarding which constitutions view of real moral rights should be treated as supremely authoritative for purposes of constitutional law. To narrow the focus to the usual suspects, should the legislature’s view of real moral rights be authoritative, or should the authoritative view be that of the courts?

Keep in mind that everyone—the legislature, the courts, and the people themselves—is subject to the requirements imposed by real moral rights. So the question is never whether the legislature is free to disregard real moral rights, or whether the courts are free to do so. The question is whose view of what those rights require should be the authoritative view within the legal system.

Some democrats believe that the legislature’s view should be authoritative. However, because the legislature is always subject to the constraints of real moral rights, whether or not they are incorporated into the constitution, it is pointless to incorporate them unless one plans to make them judicially enforceable against the legislature (whether or not the legislature is able thereafter to override that determination). The point bears repeating. Constitutionalizing real moral rights only makes sense alongside judicial authority to determine their content and enforce them against the legislature, not because courts are superior to legislatures when it comes to determining the content of moral rights, but because legislatures are already supposed to make their legislation consistent with real moral rights, whether or not constitutionalized. If courts are not superior to legislatures in determining the content of real moral rights, either epistemically or motivationally, it makes no sense to constitutionalize those rights.

So if real moral rights are to be incorporated into a constitution, they must be subordinated to the constitutional structures and to some institution’s determination of their content. And therefore an institution must be chosen that will have the authoritative say regarding that content, though incorporation of real moral rights strongly implies that the chosen authoritative institution will be the courts. The third thing to note about incorporating real moral rights is that there is no guarantee that moral reality will contain the moral rights referred to in the constitutional text. There may be no moral right of equality, or of freedom of expression, or of freedom of religion. Or those rights may just be aspects of some moral right that is not named in the constitution. Or the correct moral theory might be a consequentialist one, like utilitarianism or egalitarianism, in which the only moral “right” is that all actions conform to the consequentialist norm. If constitutional authors wish to constitutionalize real moral rights, they had better be certain that the rights they name are real moral rights. But, of course, they cannot be certain. They would be better off just telling the courts to enforce against the legislature whatever moral rights there actually are without attempting to name them.

I have now discussed two of the three possibilities constitutional authors might have in mind in constitutionalizing rights. They might be creating specific rights in the form of determinate rules that define the rights, such as a rule forbidding judicially compelled incriminating testimony or a rule forbidding requiring a license to speak. Or they might be attempting to incorporate by reference real moral rights. The third and final possibility is that in constitutionalizing a right, the constitutional authors are inventing or creating the right, but without giving it any determinate form—that is, without embodying it in a rule or set of rules. Rather, the right is supposed to function as a principle or value, with weight, not as a specific rule such as the rule against requiring a license to speak.

I have already mentioned the problem with this third possibility. It may not be possible, however hard one tries, to invent a right that is not coterminous with a determinate rule. If there is nothing in the world pre-existing the constitution to which this right refers—if this right comes into being only by virtue of its being mentioned in the constitution—then its contours and weight cannot be assessed nonarbitrarily, as there is nothing in the world that would make any such assessment true. The courts would be making it up were they to declare that such a constitutional right applied or did not apply, outweighed the government’s interest in its legislation or did not outweigh it.

What distinguishes these legal principles or values from legal standards—legal norms that are not determinate rules? Do not standards require judges to fill in their requirements? Standards do require judges to fill in their requirements, but fill them in by consulting reasons that pre-exist the legal system, most notably, moral reasons. A standard essentially instructs the judges to do what is morally best within the space left open by legal rules. Standards do not create the reasons on which judges are to rely in fleshing them out.
V. Implications for Constitutional Interpretation

I have argued that constitutional provisions creating governmental structures are like assembly instructions for toys and gadgets. They are assembly instructions for creating a government. Constitutional rights provisions, I have argued, can be of two types: determinate rules creating the rights, or incorporation by reference of real moral rights. Finally, I have argued that creating rights other than through determinate rules may be an impossibility.

So what do these points suggest is the proper way to interpret constitutions? Although this is an extremely contentious matter, and there are a multitude of views on offer, this author believes that reflection on the foregoing description of the constitutional project suggests constitutional interpretation should be an inquiry into the authorially intended meaning of the constitution’s provisions. If that inquiry reveals that a provision is a rule, its meaning will be what its authors intended it to mean. If it is a standard, or the incorporation by reference of principles of morality or prudence, interpretation is at an end, and the task of implementation switches from interpretation to first-order practical reasoning.
VI. Constitutional Change, Organic and Revolutionary

Of course, it is always possible for there to be some sort of bloodless constitutional revolution. Constitutions are fundamental law only if they are accepted by the people as fundamental law. And the people may wake up tomorrow and begin accepting as fundamental law some new instrument. The U.S. Constitution was not an organic continuation of the Articles of Confederation. It was just run up a flagpole, and the people saluted. If they had not, the U.S. Constitution would have no more authority today than the Articles of Confederation or the Constitution of the Confederate States of America.

Therefore, if judges routinely depart from the authorially intended meanings, and the people accept these new judicial amendments as fundamental law, then we will have had several constitutional revolutions. Several new constitutions, superficially resembling but actually different from one another, will have come into being through successive judicial amendments and popular acceptance of those amendments. But the real question would then be whether the people were actually aware of what is going on. Was their acceptance itself dependent on their belief that the courts are not amending the constitution from the bench but are interpreting it?
Further Reading

Larry Alexander, ed., Constitutionalism: Philosophical Foundations (Cambridge University Press, 1998).

Larry Alexander, “What Are Constitutions, and What Should (and Can) They Do?,” _____ Social Philosophy & Policy ____ (2010).

Larry Alexander, “Constitutionalism and Democracy: Understanding the Relation,” in S. Kautz, A. Melzer, J. Weinberg, & M.R. Zinman, eds., The Supreme Court and the Idea of Constitutionalism (University of Pennsylvania Press, 2009).

Larry Alexander, “Of Living Trees and Dead Hands: The Interpretation of Constitutions and Constitutional Rights,” 22 Canadian Journal of Law & Jurisprudence 227 (2009).

Larry Alexander and Frederick Schauer, “Rules of Recognition, Constitutional Controversies, and the Dizzying Dependence of Law on Acceptance,” in M. Adler & K. Himma, eds., The Rule of Recognition and the U.S. Constitution (Oxford University Press, 2009).

Larry Alexander and Frederick Schauer, “Law’s Limited Domain Confronts Morality’s Universal Empire,” 48 William & Mary Law Review 1579 (2007).

Christopher L. Eisgruber, Constitutional Self-Government (Harvard University Press, 2001).

Richard S. Kay, “Original Intentions and Public Meaning in Constitutional Interpretation,” 103 Northwestern University Law Review 703 (2009).

Laurence G. Sager, Justice in Plainclothes: A Theory of American Constitutional Practice (Yale University Press, 2004).

Frederick Schauer, “Amending the Presuppositions of a Constitution,” in S. Levinson, ed., Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton University Press, 1995).

Jeremy Waldron, Law and Disagreement (Clarendon Press, 1999).
Keywords

constitution, rule, standard, principle, settlement, interpretation, validity, entrenchment, powers, rights, acceptance, revolution