Liberation through Jurisgenesis: On Constitutionalism

Abstract

ABSTRACT This article begins with a consideration of whether the January 6, 2021, attack on the United State’s Capitol building can be considered a form of “legitimate political discourse” and compares the insurrectionists to the Black Lives Matter protest movement. Both movements, as different and antithetical as they are, raised meta-questions about how it is that we establish by means of law the forms to express dissent. It is proposed that “constitutionalism,” namely, the doctrine that the primary means to create and sustain free institutions are constitutions, which were and are result of historical events, i.e., revolutions such as the French, the American, and Haitian, that nonetheless unleashed normative powers and aspirations. After an analysis of constitutionalism through the lens of the US Constitution, the text turns to an analysis of what here are called “constitutional deconstructions.” Six such deconstructions are discussed: of the written constitution itself, of the law, of rights, of the people, of the state, and finally, of the Supreme Court as the protector and ultimate reader of the constitition. In this last section, the 2021 Report of the Presidential Commission on the Supreme Court of the United States is considered.