T his article highlights a gap between a great deal of constitutional theory and a great deal of the practice of democratic constitution-making. Drawing on data from democratic national and state constitutions, we challenge the consensus among constitutional theorists that a central purpose of constitutionalism is the entrenchment (the fortification against future change) of broad principles. The empirical reality is that the majority of democratic constitutions today are subject to frequent revision, and are therefore ill-equipped to facilitate the entrenchment of their contents. To explore the logic of these unentrenched documents, we identify the historical periods in which different geographic regions moved away from highly entrenched constitutions, and we examine the political contexts of these transformations. We find that, in each context, constitution-makers were attempting to limit the discretion of constitutional interpreters and implementers by drafting highly specific texts and by updating them in response to continually changing circumstances.
Through a case study of the early American Civil Liberties Union (ACLU), this article examines the empirical ramifications of constitutional scholars' recent exhortations to “take the Constitution away from the courts” in order to promote democratic deliberation about constitutional meaning. While it is now one of the most prominent examples of a litigation‐based interest group, the ACLU began its existence demonstrating a commitment to constitutionalism outside the courts. Through coding a decade's worth of meeting minutes and examining archival sources, I demonstrate that the ACLU's mounting unpopularity rendered extrajudicial politics impossible, precipitating the ACLU's shift toward litigation. The ACLU's move toward litigation, despite its early devotion to political activism outside the courts, suggests that it is not always possible for political actors to make constitutional arguments without courts. Furthermore, the ACLU's use of courts to publicize and dramatize its constitutional arguments demonstrates that litigation may actually promote popular deliberation about constitutional meaning. These political realities both highlight and contradict two empirical assumptions underlying arguments about the normative desirability of restricting courts' involvement in constitutional politics. First, the state is not a neutral arena in which all political actors are equally free to pursue their constitutional visions through majoritarian processes. Second, courts may facilitate (rather than hinder) popular deliberation about constitutional questions.
Looking for Rights in All the Wrong Places On January 15 th , 1870, Illinois's third constitutional convention had been underway for just over a year, and an experienced coal miner named George Snowden wrote a letter to one of its delegates. In it, he explained that his poor health had prevented him from writing sooner, but that in reading a newspaper account of the constitutional convention, he was moved to communicate with its members. He wrote "as a miner, I thought it but proper that the miner's interest ought to be considered in that convention. I do not know that it is right in a legal sense, but I know it will do no harm for you to consider what the miners ought to have as their rights-either in the convention or in the legislature." i He went on to detail the protections that the miners "ought to have as their rights," listing specific regulations like requirements for ventilation and escapement shafts in coal mines, the mandatory presence of mining inspectors, and laws compelling mine owners to pay damages to injured miners. Snowden might well have been pleased by the outcome. ii The new state constitution established the duty of the state legislature to enact several of the safety regulations he listed, and thereby obligated government to protect the state's miners from the dangerous conditions in which they were forced to work. iii Illinois's miners had, in fact, been organized to demand this kind of protection for some time, but had not been able to secure the protective regulations they sought from the state's legislature. After a decade of trying, they turned to the state's constitutional convention, where they successfully secured this constitutional right to governmental protection from the particularly dangerous features of work in the mines. Of course, when most people think about America's constitutional rights, they do not think about miners or about Illinois law. Instead, they think about the U.S. Constitution, its Bill of Rights, and the Supreme Court opinions that have shaped its meaning. Studies of the federal Constitution and the changes in its meaning have dominated discussions about American constitutional law. As a result, most accounts of American constitutional rights describe these rights as limitations on the scope of government. American rights, we are often told, protect their bearers from tyrannical government by forcing government to restrain itself from intervening in social and economic life. They do not mandate more government or offer protection from threats that do not stem directly from government itself. While other nations have constitutional rights to an active, welfarist state, often known as positive rights, constitutional rights in the United States are often thought to protect people from government alone, not to mandate that government protect them from other sorts of dangers. In other words, America is widely believed to be exceptional in its lack of positive constitutional rights and its exclusive devotion to negative ones. But how accurate is this conception? A...
This book examines the nature and political origins of America's positive constitutional rights. It is widely assumed that constitutional rights in the United States protect people from government alone, not to mandate that government to protect them from other sorts of dangers. In other words, America is often believed to be exceptional in its lack of positive rights and its exclusive devotion to negative ones. The book challenges this conventional wisdom about the nature of America's constitutional rights by focusing on three political movements: the campaign for education rights, the movement for positive labor rights, and the push for constitutional rights to environmental protection during the 1960s and 1970s. Together, these cases demonstrate that rights movements in the United States have used state constitutions for reasons that have been largely overlooked by theories of constitutional politics.
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