A New Introduction to American Constitutionalism This page intentionally left blank A New Introduction to American Constitutionalism MARK A.   GRABER 1 1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offi ces in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Th ailand Turkey Ukraine Vietnam Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016 © Oxford University Press 2013 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitt ed, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitt ed by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-in-Publication Data Graber, Mark A. A new introduction to American constitutionalism / Mark A. Graber. pages cm Includes bibliographical references and index. ISBN 978–0–19–994388–3 (alk. paper) 1. Constitutional law—United States. I. Title. KF4550.G725 2013 342.73—dc23 2013011813 1 3 5 7 9 8 6 4 2 Printed in the United States of America on acid-free paper For Howard and Keith: For all the obvious and some less obvious reasons This page intentionally left blank CONTENTS Preface i x 1. Introduction to American Constitutionalism 1 1. BASIC CONSTITUTIONAL QUESTIONS 1 2. IDENTIFYING BASIC CONSTITUTIONAL QUESTIONS 4 3. THINKING ABOUT BASIC CONSTITUTIONAL QUESTIONS 10 2. What Is a Constitution? 14 1. CLASSICAL CONSTITUTIONALISM 16 2. MODERN CONSTITUTIONALISM 2 4 3. CONTEMPORA RY CONSTITUTIONALISM 3 7 3. Constitutional Purposes 40 1. CONSTITUTIONALISM AND DEMOCRA CY: THE DEAD HAND PROBLEM 42 2. BASIC CONSTITUTIONAL PURPOSES 44 3. AMERICAN CONSTITUTIONAL PURPOSES 60 4. THE VIRTUES (AND VICES) OF CONSTITUTIONALISM 63 4. Constitutional Interpretation 65 1. THE LIVING CONSTITUTION AND ITS DISCONTENTS 67 2. CONSTITUTIONAL ARGUMENTS 71 3. CONSTITUTIONAL INTERPRETATION AND CONSTITUTIONAL PURPOSES 87 4. THE POLITICS OF CONSTITUTIONAL ARGUMENT 88 vii viii Contents 5. Constitutional Authority 100 1. THE COUNTERMAJORITARIAN DIFFICULTY, JUDICIAL ACTIVISM, AND JUDICIAL RESTRA INT 1 04 2. ALLOCATING CONSTITUTIONAL AUTHORITY 110 3. SHARING CONSTITUTIONAL AUTHORITY 121 4. THE POLITICS OF SHARED CONSTITUTIONAL AUTHORITY 129 5. SHARED CONSTITUTIONAL AUTHORITY AS POLITICS, LAW, AND CONSTITUTIONALISM 1 36 6. Constitutional Change 140 1. FORMAL CONSTITUTIONAL CHANGE 144 2. SEMIFORMAL CONSTITUTIONAL CHANGE 160 3. INFORMAL CONSTITUTIONAL CHANGE 169 4. THE LAW AND POLITICS OF CONSTITUTIONAL CHANGE 172 7. American Constitutionalism in Global Perspective 174 1. FOREIGN POLICY: TWO CONSTITUTIONS? 175 2. COMPARA TIVE CONSTITUTIONALISM: UNIVERSAL OR PARTICULAR 1 81 3. A HIGHER AUTHORITY? INTERNATIONAL LAW AND THE CONSTITUTION 199 4. THE PARTICULAR AND UNIVERSAL REVISITED 208 8. How Constitutions Work 212 1. OF CHEESEBURGERS AND CONSTITUTIONS 212 2. CONSTITUTIONS AS CONSTRA INING POLITICS 215 3. CONSTITUTIONS AS CONSTRUCTING POLITICS 219 4. CONSTITUTIONS AS CONSTITUTING POLITICS 231 5. THE SELF-ENFORCING CONSTITUTION 242 6. WHEN CONSTITUTIONS DO NOT WORK 243 7. ONE LAST CRISIS 2 48 Notes 251 Cases 275 Index 279 PREFACE “You remember each other,” the elderly hostess in the fi rst scene of the roman- tic comedy declares. Miriam and Daniel are temporarily speechless. Daniel remembers a scrawny tomboy who regularly pelted her brother’s friends with snowballs. Before him is a shapely premedical student at a major state university. Miriam remembers a gawky nerd whose conversation was exhausted by the lat- est video games. Before her is a dashing political science major. Sparks will fl y as Miriam and David are reintroduced. Americans need a similar reintroduction to their constitutional order. American constitutionalism is more complex and interesting than the fragments citizens are exposed to in their youth. Th e Constitution most students remem- ber from high school civics consists entirely of limits on government action enforced by the Supreme Court. Constitutional debate is restricted to whether states may ban abortion (updated to whether same-sex couples have a constitu- tional right to marry), when the president may constitutionally send troops into foreign combat, and other matt ers of constitutional law. Some students learn the constitutional facts of life from a legalist who insists that constitutional adjudica- tion must be separated from ordinary politics. Others are taught by behaviorally oriented social scientists who repeatedly describe this distinction between law and politics as a childlike fairy tale. Neither perspective fully encompasses cru- cial elements of the American constitutional order. Proper introductions to a mature American constitutionalism begin by exploring diff erent theories about the nature and purposes of constitutions, with particular emphasis on the nature and purpose of the Constitution of the United States. Students then become acquainted with diff erent approaches for determining the meaning of constitutional provisions, allocating constitutional authority, and bringing about legitimate constitutional change. Educated citi- zens acquire a global perspective on the American constitutional order by famil- iarizing themselves with the distinctive constitutional issues raised by foreign ix