Constitutional Theory: Overview of Constitutional Theory in The United States

Constitutional theory
Constitutional theory is an area of constitutional law that focuses on the

underpinnings of constitutional government. It overlaps with legal theory,
constitutionalism, philosophy of law and democratic theory. It is not limited by country
or jurisdiction.
Overview of Constitutional Theory in the United States

Constitutional theory in the United States is an academic discipline that focuses on the
meaning of the United States Constitution. Its concerns include (but are not limited to)
the historical, linguistic, sociological, ethical, and political.
Much of constitutional theory is concerned with theories of judicial review. This is in
part because Marbury v. Madison, which established this judicial power in the early
19th century, has given the judiciary near-final authority on constitutional meaning.
Aside from judicial review, constitutional theory in general seeks to ask and answer the
following questions:
How should the Constitution be interpreted?
How much weight should be given to the history of the Constitution's framing?
How much, if any, of the Constitution's meaning can be read as implicit in the
text?
What vision of republican government does the Constitution seek to further?
How does constitutional meaning shift with other changes in the political
structure?
How does constitutional meaning shift with changes in cultural norms?
What is the proper relationship between individual rights and state power?
What is the proper relationship between the branches of government

o This question involves the power of judicial review, noted above
What is the proper relationship between the federal government and the states?
History of Constitutional Theory in the United States

Although constitutional theory as a discipline has its precursors in The Federalist and
Justice Story's Commentaries on the Constitution, modern constitutional theory began
with the publication of Alexander Bickel's The Least Dangerous Branch. (The title is an
allusion to The Federalist No. 78, in which Alexander Hamilton wrote that the judiciary
"will always be the least dangerous to the political rights of the Constitution", because it
has neither the sword (like the Executive) nor the purse (like the Legislature). The
book's primary (but not sole) contribution was to introduce the idea of the
"countermajoritarian difficulty." The idea expressed by the term countermajoritarian
difficulty is that there is a tension between democratic government (as he defines it
democratic government is majoritarian government) and judicial power. If the judiciary
an unelected branch of governmentcan overturn popular legislation, then either
there is a fundamental contradiction within the democratic system, or there is a tension
that must be resolved by curbing judicial power. (One of Bickel's solutions is for the
Court to exercise "the passive virtues": that is, to decline to decide more than it has to
decide.)
German Rechtsstaat and Russian Legal State

The Rechtsstaat doctrine (Legal state, State of Right, Constitutional state, constitutional
government) was introduced in the latest works of the German philosopher Immanuel
Kant (17241804) after US and French constitutions were adopted in the late 18th
century. Kants approach is based on the supremacy of a countrys written constitution.
This supremacy must create guarantees for implementation of his central idea: a
permanent peaceful life as a basic condition for the happiness of its people and their
prosperity. Kant was basing his doctrine on none other but constitutionalism and
constitutional government.
Kant had thus formulated the main problem of constitutionalism, The constitution of a
state is eventually based on the morals of its citizens, which, in its turns, is based on the
goodness of this constitution. Kants idea is the foundation for the constitutional theory
of the twenty-first century. The Legal state concept is based on the ideas, discovered by
Immanuel Kant, for example, in his Groundwork of the Metaphysic of Morals: The
task of establishing a universal and permanent peaceful life is not only a part of theory
of law within the framework of pure reason, but per se an absolute and ultimate goal. To
achieve this goal, a state must become the community of a large number of people,
living provided with legislative guarantees of their property rights secured by a common
constitution. The supremacy of this constitution must be derived a priori from the
considerations for achievement of the absolute ideal in the most just and fair
organization of peoples life under the aegis of public law..[2]
The Russian legal system, borne out of transformations in the 19th Century under the
judicial reform of Alexander II, is based primarily upon the German legal tradition. It
was from here that Russia borrowed a doctrine of Rechtsstaat, which literally translates
as Legal State. The English most close analogue is rule of law.[3] Rechtsstaat is a
concept in continental European legal thinking, originally borrowed from German legal
philosophy, which can be translated as legal state or "state of law", or "state of rights",
"constitutional state" in which the exercise of governmental power is constrained by the
law. The Russian Legal state concept adopts the written constitution as a supreme law of
the country (the rule of constitution).[4] The concept of legal state (pravovoe
gosudarstvo in Russian) is a fundamental, but undefined, principle that appears in the
very first dispositive provision of Russias post-Communist constitution: The Russian
Federation Russia constitutes a democratic federative legal state with a republican
form of governance. Similarly, the very first dispositive provision of the Constitution
of Ukraine declares: Ukraine is a sovereign and independent, democratic, social, legal
state. The effort to give meaning to definition Legal State is anything but theoretical.
Valery Zorkin, President of the Constitutional Court of Russia, wrote in 2003:
Becoming a legal state has long been our ultimate goal, and we have certainly made
serious progress in this direction over the past several years. However, no one can say
now that we have reached this destination. Such a Legal state simply cannot exist
without a lawful and just society. Here, as in no other sphere of our life, the state reflects
the level of maturity reached by society.".[5]
The Russian concept of Legal state adopted many segments of the constitutional
economics. One of the founders of constitutional economics James M. Buchanan, the
1986 recipient of the Nobel Memorial Prize in Economic Sciences argues that in the
framework of constitutional government any governmental interventions and
regulations have been based on three assumptions.
First, every failure of the market economy to function smoothly and perfectly
can be corrected by governmental intervention.
Second, those holding political office and manning the bureaucracies are
altruistic upholders of the public interest, unconcerned with their own personal
economic well-being.
And, third, changing the responsibilities of government towards more

intervention and control will not profoundly and perversely affect the social and
economic life.

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Constitutional theory

Constitutional theory is an area of constitutional law that focuses on the

Overview of Constitutional Theory in the United States

How should the Constitution be interpreted?

What vision of republican government does the Constitution seek to further?

How does constitutional meaning shift with changes in cultural norms?

What is the proper relationship between the branches of government

History of Constitutional Theory in the United States

German Rechtsstaat and Russian Legal State

And, third, changing the responsibilities of government towards more

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