American Constitutional Tradition Research Articles

‘Nosotros, el pueblo’: apuntes sobre la evolución del concepto de soberanía en el constitucionalismo iberoamericano

La presente investigación se dirige a examinar la evolución del concepto de soberanía en la tradición constitucionalista iberoamericana, poniendo énfasis en el caso del constitucionalismo en algunos de sus países. A tal efecto se examinarán las tres principales influencias o antecedentes teóricos de la noción “soberanía” en la región; a saber, Bodin, Hobbes y Grocio. Posteriormente, a partir de una metodología basada en la dogmática jurídica, pero que recoge contribuciones de la teoría política y teoría del derecho, se analizará el rol de la soberanía en la pretensión de profundizar la democracia participativa que caracterizó a la última oleada de constituciones latinoamericanas. Uno de los principales resultados que arroja este trabajo consiste en revelar que el constitucionalismo iberoamericano descansa en una noción de soberanía popular que motiva el viraje desde una concepción de la democracia meramente representativa hacia una de corte participativo. Sin embargo, la falta de sólidas instituciones que aseguren la inclusión efectiva de todas las voces en el debate democrático, junto con un escaso rediseño de la organización del poder, habría diluido significativamente a las aspiraciones democráticas del constitucionalismo iberoamericano.

Neither Trumps nor Interests: Rights, Pluralism, and the Recovery of Constitutional Judgment (Introduction)

This article develops a novel framework for rights adjudication responsive to an age of bitter partisan polarization. What warrant do judges have to resolve deep conflicts over values in a pluralistic political order? In the American constitutional tradition, the answer has historically turned to doctrinal categories, which draw strength from a claim about expertise: the judicial skill to interpret categorical boundaries beyond which democratic decision-making must not reach. But the categorical approach, as Professor Jamal Greene has powerfully argued in a recent article, risks embracing the absolute nature of constitutional rights as ‘trumps’. It distorts, or simply ignores, salient values and thus further alienates citizens from one another. Proportionality analysis, favored by Greene to replace categoricalism, offers a second answer. But proportionality gives rise to an important inverse dynamic. Proportionality conceives rights not as trumps but as interests and constitutional adjudication as the pragmatic balancing of those interests at singular points in time. While it can authentically claim to keep better track of competing values in the present and justify their infringement, proportionality nevertheless invites the objection that judges have neither the democratic pedigree nor relative competence to weigh the relevant costs and benefits. Proportionality thus strains the legitimacy of judicial review, I argue, by enforcing a rights-absolutism of its own. Proportionality holds the underlying substantive meaning of rights as a constant. It reduces the pluralism of rights adjudication merely to the variable extents to which this content can justifiably be limited or infringed in any individual case of conflict. This loses a crucial achievement of American constitutional theory: the idea that paradigmatic judicial interpretations of rights trace the self-authorship of a democratic polity over time. To the same degree as categoricalism, albeit by different means, proportionality analysis undermines the institutional, hermeneutic, and political resources to transcend or accommodate difference. The article makes two broad interventions in response to these considerations. First, it cautions against a flawed normative overcorrection in the suggested turn from categoricalism toward proportionality in US constitutional interpretation. It reconstructs the variant of absolutism at work in each mode of rights interpretation in light of two distinctive (and unsound) paradigms of constitutional democracy. To demonstrate the stakes of this criticism, I draw on comparative constitutional scholarship concerning the limitations of European jurisprudence employing proportionality analysis—and examine how such limitations align neatly with those criticisms Greene levels at American categoricalism in various areas of US constitutional law. Second, the article offers an alternative. American constitutional theory requires a novel guiding light, which I term ‘narrative doctrinalism’. On this model, judicial review aims not merely to constrain democracy (categoricalism) or justify governance (proportionality) but instead to make possible a distinctive quality of democratic judgment. Set in a narrative frame, rights are neither trumps nor pragmatic interests to be balanced in proportion, but nodal commitments made in time. Their scope of application is not unlimited; but neither is their meaning timeless, simply to be narrowed or infringed where particular conflicts dictate. Rights have pasts and futures that demand historically-grounded interpretation, which judges are uniquely well-positioned to provide. The article develops narrative doctrinalism’s normative and methodological insights in detail. It then applies them to a salient case from the Supreme Court’s prior term: Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case whose resolution is likely to guide—for good or ill— how the Court will dispose future analogous conflicts among rights regimes in other areas of law.

The Foundations of the Modern Philippine State: Imperial Rule and the American Constitutional Tradition in the Philippine Islands, 1898–1935

Leia Castañeda Anastacio has produced a volume that will likely become a go-to text for those interested in the constitutional history of the Philippines and for those who study the legal history of the United States. The central argument that guides readers through the interaction of these two intersecting legal histories is that the colonial governmental and legal structures created by the American imperial experiment in the early-twentieth century provided a blueprint for the Philippine constitution. From the start, Anastacio links the authoritarian ruler of her youth, Ferdinand Marcos (the Philippine president from 1965 to 1986), directly to the strong executive leadership model established during U.S. imperial rule in the islands, which saw Filipinos “enjoy the trappings of popular sovereignty while depriving them of political control” (p. 10). The author sees the roots of this uneven distribution of power in the prevailing racialized and “civilizing” notions of the era. For many U.S. imperialists, the full-scale transferral of American institutions and legal systems was simply not practicable, and, thus, a strange and distorted colonial hybrid emerged; its impact is still felt today.

Relative Impermeability of the Wall of Separation: Marriage Equality in the Philippines

AbstractThe Philippine doctrine on the separation of church and state, while rooted in American constitutional tradition, continues to show vestiges of Spanish colonial rule. The Philippines adopted the union of church and state for three and a half centuries as a Spanish colony, but became a secular state after it was ceded to the United States of America in 1898. The wall of separation has since been maintained in all subsequent Philippine constitutions, only to be compromised in statutes and daily life. That conflict is most evident in marriage, a legal institution openly shaped by canon law. Falcis v Civil Registrar-General, the marriage equality petition pending before the Philippine Supreme Court, seeks to end that practice. But note the irony: while the US Supreme Court in Obergefell v Hodges secularizes marriage and disconnects it from religion, Falcis takes an opposing route in anchoring marriage equality on religious freedom. This article looks at the prospect of that gambit. By contrasting the legal and theological contexts from which Obergefell and Falcis stem, the article shows how the demands of same-sex union and church-state separation are tightly intertwined.

Ernst-Wolfgang Böckenförde on Constitutional Judging in a Democracy

This Article explores Ernst-Wolfgang Böckenförde's views about constitutional judging in a democracy. It offers three ideal types of constitutional judging, each drawn from the extra-judicial writings of prominent constitutional judges who represent it. The three types are: (1)the prophet, who views the constitution as visionary and value-laden, and who entertains an expansive view of the judge's role in giving voice and validity to that vision and those values; (2)the essayist, who shares the prophet's sense of the vast scope and myriad resources of constitutional judging, but who, lacking the prophet's confidence in getting such bewilderingly difficult questions right, approaches constitutional judging cautiously, skeptically, and deferentially; and (3)the executor, who views constitutional judging as the effort to discern the constitution's concrete, limited content, and to enforce that content unflinchingly. Böckenförde, the Article argues, was an executor—one who shared many interpretive commitments with the two most prominent executors in the American constitutional tradition: Hugo Black and, especially, the late Antonin Scalia.

Bibliography of Books, Chapters and Journal Articles on Colonialism and Imperialism Published in English in 2016

Bibliography of Books, Chapters and Journal Articles on Colonialism and Imperialism Published in English in 2016 Marcella Fultz Marcella Fultz comp. Books Abbondanza, Gabriele. Italy as a Regional Power: The African Context from National Unification to the Present Day. Ariccia: Aracne, 2016. Google Scholar Adeney, Martin. Baggage of Empire: Reporting Politics and Industry in the Shadow of Imperial Decline. London: Biteback, 2016. Google Scholar Ageel, Ghada, ed. Apartheid in Palestine: Hard Laws and Harder Experiences. Edmonton: U of Alberta P, 2016. Google Scholar Ahuja, Neel. Bioinsecurities: Disease Interventions, Empire, and the Government of Species. Durham: Duke UP, 2016. Google Scholar Aitken, Ian. The British Official Film in South-East Asia. London: Palgrave Macmillan, 2016. Google Scholar Alamo-Pastraqna, Carlos. Seams of Empire: Race and Radicalism in Puerto Rico and the United States. Gainesville: UP of Florida, 2016. Google Scholar Aldrich, Robert and Cindy McCreery, eds. Crowns and Colonies: European Monarchies and Overseas Empires. Manchester: U of Manchester P, 2016. Google Scholar Alecou, Alexios. Communism and Nationalism in Postwar Cyprus, 1945–1955. Cham: Springer, 2016. Google Scholar Ali, Muhamad. Islam and Colonialism: Becoming Modern in Indonesia and Malaya. Edinburgh: Edinburgh UP, 2016. Google Scholar Allan, Michael. In the Shadow of World Literature: Sites of Reading in Colonial Egypt. Princeton: Princeton UP, 2016. Google Scholar Allen, Amy. The End of Progress: Decolonizing the Normative Foundations of Critical Theory. New York: Columbia UP, 2016. Google Scholar Allender, Tim. Learning Femininity in Colonial India, 1820–1932. Manchester: Manchester UP, 2016. Google Scholar Alshaer, Atef. Poetry and Politics in the Modern Arab World. London: Hurst, 2016. Google Scholar Anastacio, Leia Castañeda. The Foundations of the Modern Philippine State: Imperial Rule and the American Constitutional Tradition in the Philippine Islands, 1898–1935. New York: Cambridge UP, 2016. Google Scholar Anderson, Mark Cronlund. Holy War: Cowboys, Indians, and 9/11s. Regina: U of Regina P, 2016. Google Scholar Anderson, Clare, Madhumita Mazumdar, and Vishvajit Pandya. New Histories of the Andaman Islands: Landscape, Place and Identity in the Bay of Bengal, 1790–2012. Cambridge: Cambridge UP, 2016. Google Scholar Anishanslin, Zara. Portrait of a Woman in Silk: Hidden Histories of the British Atlantic World. New Haven: Yale UP, 2016. Google Scholar Antunes, Cátia and Amélia Polónia, eds. Beyond Empires: Global, Self-Organizing, Cross-Imperial Networks, 1500–1800. Leiden: Brill, 2016. Google Scholar Atçıl, Abdurrahman. Scholars and Sultans in the Early Modern Ottoman Empire. Cambridge: Cambridge UP, 2016. Google Scholar Atkinson, David C. The Burden of White Supremacy: Containing Asian Migration in the British Empire and the United States. Chapel Hill: U of North Carolina P, 2016. Google Scholar Aymer, Paula L. Evangelical Awakenings in the Anglophone Caribbean. New York: Palgrave Macmillan, 2016. Google Scholar Babcock, Matthew. Apache Adaptation to Hispanic Rule. Cambridge: Cambridge UP, 2016. Google Scholar Bach, Ulrich E. Tropics of Vienna: Colonial Utopias of the Habsburg Empire. New York: Berghahn, 2016. Google Scholar Balce, Nerissa. Body Parts of Empire: Visual Abjection, Filipino Images, and the American Archive. Ann Arbor: U of Michigan P, 2016. Google Scholar Balkun, Mary McAleer and Susan Clair Imbarrato, eds. Women's Narratives of the Early Americas and the Formation of Empire. New York: Palgrave Macmillan, 2016. Google Scholar Balthaser, Benjamin. Anti-Imperialist Modernism: Race and Transnational Radical Culture from the Great Depression to the Cold War. Ann Arbor: U of Michigan P, 2016. Google Scholar Banivanua-Mar, Tracey. Decolonisation and the Pacific: Indigenous Globalisation and the Ends of Empire. Cambridge: Cambridge UP, 2016. Google Scholar Banko, Lauren. The Invention of Palestinian Citizenship, 1918–1947. Edinburgh: Edinburgh UP, 2016. Google Scholar Bankoff, Greg and Joseph Christensen. Natural Hazards and Peoples in the Indian Ocean World. New York: Palgrave Macmillan, 2016. Google Scholar Barry, Gearóid, Enrico Dal Lago, and Róisín Healy, eds. Small Nations and Colonial Peripheries in World War I. Leiden: Brill, 2016. Google Scholar Barter, Shane Joshua. Explaining the Genetic Footprints of Catholic and Protestant Colonizers. New York: Palgrave Macmillan, 2016. Google Scholar Bassi, Ernesto. An Aqueous Territory: Sailor Geographies and New Granada's Transimperial Greater Caribbean World. Durham: Duke UP, 2016. Google Scholar Bates, David. William the Conqueror. New Haven: Yale UP, 2016. Google Scholar Bauer, Brian S., Madeleine Halac-Higashimori, and...

The Natural Rights Liberalism of Franklin Delano Roosevelt: Economic Rights and the American Constitutional Tradition

The Natural Rights Liberalism of Franklin Delano Roosevelt: Economic Rights and the American Constitutional Tradition

Reading Professor Obama: Race and the American Constitutional Tradition

"Reading Professor Obama" mines Barack Obama’s syllabus on “Current Issues in Racism and the Law” for evidence of his beliefs about race, law, and jurisprudence. The syllabus forhis 1994 seminar at the University of Chicago, which provides the reading assignments and structure for the course, has been available on the New York Times website since July 2008. Other than a few responses solicited by the New York Times when it published the syllabus, however, there has been little attention to the material Obama assigned or to what it suggests about Obama’s approach to the law and race.The class began with four weeks of foundational readings, followed by four weeks of student-led class discussions. The readings started by discussing the malleability of racial categories and progressed to cases from the nineteenth century on Native Americans and on slavery. The second day’s readings shifted to the Reconstruction era and changes in the Constitution and statutory law, as well as the rise of the “Jim Crow” system of segregation and the response of African American intellectuals. The third class covered the Civil Rights revolution and retrenchment. It included reading from such diverse figures as Robert Bork, Martin Luther King, and Malcolm X. The fourth class, “Where Do We Go From Here?,” addressed some of the enduring issues of inequality facing our nation, the fragility of the African American middle class, continuing racism against African Americans, and a plea for more understanding. After the initial four class meetings, student groups selected additional readings and led class discussions on a variety of race-related topics. The syllabus has suggested topics for the presentations and brief discussion of those topics.The media has called attention to President Obama’s public relationship with Derrick Bell; notwithstanding the option to read Bell’s summaries of cases in lieu of the actual opinions, the readings have no overt endorsement of Derrick Bell, Critical Race Theory (“CRT”), or Bell’s Interest-Convergence theory. Obama included many critics of CRT and offered readings that seemingly demonstrate his hope for substantially more dialog and perhaps, ultimately, economic uplift of those labeled by some of his readings “the truly disadvantaged.” Obama’s use of the Martin Luther King, Jr.’s essay Where Do We Go from Here: Chaos or Community? as the title of the last group of readings suggests that Obama did not share Bell’s vision of the unalterable nature of racism.The readings, while instructive, are just the starting point of our analysis. Obama’s suggested topics encourage students to wrestle with the modern consequences of racism and to question its malleability. Thus, we suggest that the readings and group presentation topics reveal Obama, the teacher, as interested in, but not necessarily aligned with, many of the key questions of CRT. The syllabus fits with the story that Obama focuses on issues that unite Americans while he seeks equal treatment. This may reflect the future of constitutional doctrine related to race.

Confederate Visions: Nationalism, Symbolism, and the Imagined South in the Civil War by Ian Binnington (review)

Reviewed by: Confederate Visions: Nationalism, Symbolism, and the Imagined South in the Civil War by Ian Binnington Michael T. Bernath (bio) Confederate Visions: Nationalism, Symbolism, and the Imagined South in the Civil War. By Ian Binnington. (Charlottesville: University of Virginia Press, 2013. Pp. 216. Cloth, $39.50.) Scholarship surrounding Confederate nationalism has grown by leaps and bounds. In just the last decade, over half a dozen major new books dedicated expressly to the subject have been published. These works share a determination to move away from the long-standing weak-versus-strong debate of the previous thirty years and to evaluate the roots, substance, dissemination, and legacy of Confederate nationalism within the broader context of nineteenth-century nation-building, and no longer simply as an explanation for southern defeat or persistence. They have challenged us to take Confederate nationalist ideology seriously and to situate it within American and international practices, traditions, and thought. Ian Binnington’s short book is part of this burgeoning trend. He focuses on the symbols of Confederate nationalism (three in particular) and the meaning that white southerners invested in them. He argues that the creation of Confederate nationalism was “a quest for a symbolic text” and seeks to provide a careful reading of that text by highlighting recurrent symbols across different media and genres (6). With an insufficient collective past and an uncertain and incompletely conceived future, Confederate nationalists dwelled in a compressed “mythic present” (2). In constructing that present, white southerners relied upon certain symbolic figures and tropes to define and differentiate themselves from their northern enemies, as well as to assert their “Confederate Americanism”—a shared sense of history that declared theirs to be the true American nation and Confederates the rightful heirs of the legacy of the Revolution. Binnington identifies these symbolic figures as the “Worthy Southron,” the “Demon Yankee,” and the “Silent Slave.” The Worthy Southron was the embodiment of southern [End Page 318] nobility, civility, gentility, bravery, tradition, liberty, and democracy (rightly understood). The Demon Yankee was his polar opposite—venal, fanatical, barbarous, cowardly, meddlesome, greedy, and tyrannical. The Silent Slave was the often-unacknowledged foundation of this constructed South, a loyal “companion to the vocal Confederate self,” who, while visible, never spoke for himself (4). Having defined these tropes, Binnington proceeds with chapter-length case studies to demonstrate their presence and utility both before and during the war. Binnington begins by focusing on the commentary, largely found in southern newspapers, surrounding the drafting and ratification of the Confederate constitution in order to show that Confederate opinion makers believed it vital that their new constitution and the process by which it was created be situated squarely within the American constitutional tradition: firm evidence, Binnington maintains, of their Confederate Americanism. Next, he examines three prophetic antebellum southern novels foretelling secession and civil war, all of which prefigured Confederate nationalist symbolism by employing the figures of the Worthy Southron, Demon Yankee, and Silent Slave, and by depicting their heroic southern protagonists as champions of American liberty, defending themselves against their un-American northern adversaries. In one of his most original chapters, Binnington treats the collective iconography of Confederate currency as text in order to draw the reader’s attention to money as a means of ideological dissemination as well as to reveal how the depiction of the Confederate nation changed, moving from the agrarian to the more overtly martial. His discussion raises questions about the process by which these images were created and who exactly was writing this symbolic text: questions that examining the images on the bills alone cannot answer. It also raises questions about the material constraints under which Confederate nationalists operated and the degree to which the change Binnington describes resulted from the southern inability to produce or commission original images early in the war. Next, Binnington explores Confederate imaginative literature, four novels specifically, in order to show how southern novelists developed the Worthy Southron, Demon Yankee, and Silent Slave tropes in order to bolster Confederate morale and advance wartime nationalism. The final chapter looks at literary depictions of Confederate military figures as living embodiments of the Worthy Southron ideal. Reaffirming the work of Gary Gallagher and others who have...

Reading Professor Obama: Race and the American Constitutional Tradition

Reading Professor Obama: Race and the American Constitutional Tradition

First Person Plural

Like most other Indo-European languages, English does not distinguish between the inclusive and exclusive uses of the first person plural. By contrast, languages as diverse as Tok Pisin, Samoan, Taiwanese, and Cherokee take care to distinguish between first person plural pronouns that include the listener and those that exclude the listener. This linguistic difference sheds light on the use of we throughout the foundational documents and the authoritative interpretations of the American constitutional tradition.

The American state constitutional tradition

For too long, the American constitutional tradition has been defined solely by the U.S. Constitution drafted in 1787. Yet constitutional debates at the state level open a window on how Americans, in different places and at different times, have chosen to govern themselves. From New Hampshire in 1776 to Louisiana in 1992, state constitutional conventions have served not only as instruments of democracy but also as forums for revising federal principles and institutions. In American State Constitutional Tradition, John Dinan shows that state constitutions are much more than mere echoes of the federal document. The first comprehensive study of all 114 state constitutional conventions for which there are recorded debates, his book shows that state constitutional debates in many ways better reflect the accumulated wisdom of American constitution-makers than do the more traditional studies of the federal constitution. Wielding extraordinary command over a mass of historical detail, Dinan clarifies the alternatives considered by state constitution makers and the reasons for the adoption or rejection of various governing principles and institutions. Among other things, he shows that the states are nearly universal in their rejection of the rigid federal model of the constitutional amendment process, favoring more flexible procedures for constitutional change; they often grant citizens greater direct participation in law-making; they have debated and at times rejected the value of bicameralism; and they have altered the veto powers of both the executive and judicial branches. Dinan also shows that, while the Founders favored a minimalist design and focused exclusively on protecting individuals from government action, state constitution makers have often adopted more detailed constitutions, sometimes specifying positive rights that depend on government action for their enforcement. Moreover, unlike the federal constitution, state constitutions often contain provisions dedicated to the formation of citizen character, ranging from compulsory schooling to the regulation of gambling or liquor. By integrating state constitution making with the federal constitutional tradition, this path-breaking work widens and deepens our understanding of the principles by which we've chosen to govern ourselves.

Religious Expression and Symbolism in the American Constitutional Tradition: Governmental Neutrality, But Not Indifference

Religious Expression and Symbolism in the American Constitutional Tradition: Governmental Neutrality, But Not Indifference

Religious Expression and Symbolism in the American Constitutional Tradition: Governmental Neutrality, But Not Indifference

In this article, I describe and analyze three principles of First Amendment doctrine. First, the Establishment Clause generally forbids governmental expression that has the purpose or effect of promoting or endorsing religion. Second, and conversely, private religious expression is broadly defined and is strongly protected by the Free Speech Clause. Third, as an implicit exception to the first principle, the government itself is sometimes permitted to engage in expression that seemingly does promote and endorse religion, but only when the expression is noncoercive, nonsectarian, and embedded within (or at least in harmony with) longstanding historical tradition. Comparing these three principles to the demands of French laicite , I conclude that the United States and France share fundamental common ground on the first principle, but that the second and third principles demonstrate that the American approach is in some respects more protective and tolerant of religious expression in the public domain. I suggest that these variations are not accidental, but rather are the product of historical, philosophical, and cultural differences.

The War Against Terrorism and the Rule of Law

The War Against Terrorism has put into issue two tenets of the American constitutional tradition. The first denies the government the power to imprison anyone unless that person is charged with a crime and swiftly brought to trial. The other requires the government to abide by the Constitution's restrictions on its power no matter where or against whom it acts. This article, based on the 2005 H.L.A. Hart lecture, examines the Supreme Court's first encounter with the Administration's conduct of the War Against Terrorism and explains how the Supreme Court's rulings badly compromised these foundational principles.

Toleration and Liberal Commitments

This essay defends the ideal of toleration as against familiar criticisms coming from opposing directions. The objection argues that toleration is too permissive. Given the choice, why should we knowingly put up with error? The objection, reflected among other places in current free speech and religion clause jurisprudence, complains that mere toleration is condescending and illiberal because it declines to treat ideas and persons with equal concern and respect. This essay argues that both sorts of objections are misconceived and that if the valued liberal commitments of the American constitutional tradition are to be maintained, then we will necessarily have to embrace an ideal of toleration. The essay further argues that a renewed commitment to toleration is especially imperative at the present time as we try to cope, internally, with an exhausted ultraliberal discourse reflected in increasingly ineffectual Supreme Court opinions and, externally, with a so-called clash of civilizations or cultures that calls upon us to defend our central values rather than complacently pretend to rest in an overlapping consensus that needs no more foundational justification.

The "Globalized Judiciary" and the Rule of Law

This paper argues, that, while not new in the strictest sense, the contemporary transnational turn in American law reflected in the U.S. Supreme Court's citation to foreign agreements, practices, and opinions in its recent affirmative action cases is distinctive in being part of a broad-ranging, highly politicized, reformist, intellectual movement. That movement, which is defined by its diverse commitments to a particular form of universal morality and foreign policy integration, in a turn that is novel, is currently striving to alter the domestic policies and constitutional understanding of the United States through the construction of a transnational, professionalized, global judiciary. The efforts to reform domestic policy through the construction of a quasi-autonomous, globalized judiciary, I contend, raises series rule of law problems within an American constitutional tradition premised on a theory of popular sovereignty. World events and popular constitutional resistance, however, may ultimately halt this trend.

The Federal Principle in American Politics, 1790–1833

Andrew C. Lenner believes that Jeffersonian constitutionalism has been misrepresented and oversimplified by historians. In this detailed study of the federal principle in American politics, Lenner seeks to vindicate Thomas Jefferson, James Madison, and their political heirs as having been neither dogmatic and inflexible in belittling federal power nor narrowly opportunistic in frustrating Federalist policies, but rather “principled and consistent” in their resistance to federal incursions into the domestic and internal affairs of the states. The Jeffersonians' frequent recourse to federal power to advance their own policies was not (Lenner suggests) simple hypocrisy, but rather the product of a coherent constitutional philosophy that distinguished domestic (state) concerns from international (federal) affairs. Foolish consistency is the hobgoblin of little minds, and Thomas Jefferson was not a little man, so Lenner's gallantry on his behalf is neither necessary nor entirely accurate; but it does capture one fundamental truth about Americans' understanding of their Constitution between 1790 and 1833—that no serious politician of any party denied the separate sovereignty of the states and the federal government within their own proper spheres of power. Conflicts arose not over the existence of separate state and federal sovereignties, but in drawing the line between them and deciding what should count as a state's own “domestic” or internal affairs. The later southern turn to nullification and to absolutist conceptions of state sovereignty represented a radical departure from the intentions of the framers of the United States Constitution and from fifty years of American constitutional tradition.

The American Civil Rights Tradition: Anticlassification or Antisubordination?

A fairly standard story about the development of antidiscrimination jurisprudence argues that, during the 1970s, the United States Supreme Court decisively rejected the views of Owen Fiss and other antisubordination theorists, and adopted a contrary and inconsistent theory of equality - the anticlassification principle - which holds that the government may not classify people either overtly or surreptitiously on the basis of a forbidden category like race. In this essay, we challenge this standard account, on analytical and historical grounds. On the standard view, American antidiscrimination law reflects anticlassification principles. But as we show in the analytical section of the essay, the anticlassification principle does not itself do the work of deciding many important issues of antidiscrimination law. Courts must make a variety of implementing decisions in order to apply the anticlassification principle; and, as we demonstrate through a variety of examples, courts do not make such implementing decisions in any consistent manner. Inconsistency in the ways that courts have implemented the anticlassification principle, over time and in different parts of the law, suggests that the discourse of anticlassification conceals other values that do much of the work in determining which practices antidiscrimination law will enjoin. In other words, application of the anticlassification principle is not fixed, nor is the principle self-implementing. It may be invoked to legitimate traditional status arrangements, or to challenge them. The nation's understanding of what it means to discriminate on the basis of race or to discriminate on the basis of sex is a social construction that shifts over time in response to social movement protest. As social protest delegitimates certain practices, courts are often moved, consciously or unconsciously, by perceptions of status harm, to find violations of the anticlassification principle where they saw none before. Considered from this historical vantage point, American civil rights jurisprudence vindicates both anticlassification and antisubordination commitments. If the discourse of anticlassification at times vindicates values that we associate with antisubordination, what was at stake in the rise of antisubordination scholarship as a distinct body of legal theory in the 1970s, beginning with Owen Fiss' pathbreaking Groups and the Equal Protection Clause? In the historical section of our essay, we argue that antisubordination theory was a response to the political retrenchment that began in the decade after the 1968 election. As nation and Court began to retreat from the social-justice commitments of the Second Reconstruction - now using the indeterminacy of anticlassification discourse to rationalize rather than to disrupt status-enforcing relations - Fiss and others sought to restate the principles at the heart of the civil rights struggle. Fiss well appreciated that the way in which the nation understood the principles animating the fight against Jim Crow would shape the way the nation faced debates about questions of racial justice in the future. This problem of collective memory is no less burning in our own day. While it is true that the Court and country refused the path that Fiss and other advocates of racial justice urged in the 1970s, it is deeply false that, in virtue of these choices, the antisubordination principle is some alien discredited Other in American constitutional tradition. As this essay demonstrates, the antisubordination principle lives by multiple names, deep in the American Civil Rights Tradition, remaining its core and its conscience - even if, as history amply attests, it is the kind of principle the nation has often honored in the breach.

A Science of Politics: Hume, The Federalist, and the Politics of Constitutional Attachment

The point of departure for this article is the recognition that the modern science of politics was once used as a tool not only for developing new political institutions, but also for shaping opinion about a constitution. After indicating the need to seek additional resources within the American constitutional tradition to support a reflective constitutional attachment, this article explores the science of politics' approach to a constitution by looking at the writings of David Hume and The Federalist. Focusing on explaining the wisdom of constitutional arrangements, these writers seek to cultivate an enlightened, scientific public opinion as the pivot of a people's relationship to their constitution. Attending first to Hume's effort to establish an enlarged, enlightened attachment to a constitution, and then to The Federalists effort to found a constitution on the people's and choice, this article helps us understand the possibilities and limits of this kind of reflection as a source of attachment to a constitution. he development of an appropriate attachment to the constitution is a fundamental challenge for all constitutional systems. The point of departure for this article is the recognition that the modern science of politics was once used as a tool not only for developing new political institutions, but also for shaping opinion about a constitution. In the American context, the most prominent example of this use of a science of politics is in The Federalist Papers. There one finds a Constitution presented in terms of a scientific analysis of institutions that preserves liberty and enhances self-government. According to this approach, citizens are urged to understand their Constitution (and their attachment to it) in terms of a science of politics that rationalizes and explains its goodness. While generally familiar, this approach is rarely evident today, and its absence is particularly noteworthy in defenses of the Constitution's authority (Bork 1990). In this article, I explore the science of politics' approach to a constitution by looking at the writings of David Hume and The Federalist. I begin by indicating the need to seek additional resources within the American constitutional tradition to support a reflective constitutional attachmentresources such as a science of politics. Hume and The Federalist afford us a unique view of this resource by largely de-emphasizing the foundationalism of premodern (higher law) and modern (liberal or consent-based) constitutionalism in favor of the authority of a science of politics. Focusing on explaining the wisdom of constitutional arrangements, they seek to cultivate an enlightened, scientific public opinion as the pivot of a people's relationship to their constitution. Though incorporating in some degree other authoritative elements (e.g., ideas of a higher law, rights, and popular sovereignty), they ultimately link the authority of a constitution to its scientific reasonableness and count on their people's ability to grasp it. Attending first to Hume's effort to establish an enlarged, enlightened attachment to a constitution, and then to The Federalists effort to found a constitution on the people's and choice, we will better appreciate the possibilities and limits of this kind of reflection as a source of attachment to a constitution. Before turning to Hume and The Federalist, I will briefly explore the foundations of contemporary American constitutional attachment. This