Abstract
This paper identifies and then criticizes ten of the leading accounts of constitutionalism: enforcement of a principal-agent relationship; enforcement of societal precommitments; providing a mechanism for checks and balances; protection of minority rights; maintenance of continuity or tradition; symbolizing national unity; serving an educational function; securing finality for disputed issues; providing a rule of recognition for law; satisfying a majoritarian preference for constitutionalism. The bulk of the paper consists of normative and positive criticism of these ten putative justifications for constitutionalism; that is, I argue that they are neither unambiguously attractive, nor do they describe particularly well our own constitutional system. In a brief, second part of the article, I offer what I believe to be a better description of our constitutional system and then assess whether that account is normatively attractive. Boiled down to essentials, my positive account of the American system of judicial review is this: The Supreme Court, in politically unpredictable ways, imposes culturally elite values in marginally countermajoritarian fashion.
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