TWO CONCEPTIONS OF CONSTITUTIONALISM

Constitutional theorists are in the midst of a debate over the appropriate institutional arrangements for the interpretation and enforcement of constitutional norms in a constitutional democracy – that is, a liberal democratic polity in which all exercises of public power must comply with some higher-order or basic law. In the United States, Larry Kramer has usefully described the two extreme positions in this debate as “legal constitutionalism” and “popular constitutionalism.” For legal constitutionalists, supreme authority to interpret and enforce the constitution rests with the courts. Because court judgments are regarded as authoritative by other government institutions and, indeed, by the public, these political actors defer to judicial pronouncements in the face of their own conflicting constitutional interpretations. Popular constitutionalists, by contrast, permit and even require that members of the executive and legislative branches independently interpret the constitution alongside the courts in the course of performing their functions. Moreover, these branches are ultimately subject to the “active and ongoing control over the interpretation and enforcement of constitutional law” by the people themselves, “conceived as a collective body capable of independent action and expression.” Institutionally, although popular constitutionalists may accept the possibility of judicial review, they refuse to accept judicial supremacy.

As Frederick Schauer has insightfully suggested, it is possible to understand this debate over institutional design as turning on different underlying conceptions of the point and function of constitutions themselves.