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Constitutional Law
of the United States of America
The constitutional structure
Civil Rights  · Federalism
Executive branch  · Separation of powers
Legislative branch  · Judiciary
Famous Cases
Marbury v. Madison
McCulloch v. Maryland  · Roe v. Wade
Dred Scott v. Sandford  · Lochner v. New York
Freedoms
Free speech  · Free exercise
Freedom of the press  · Right to privacy
Theory
Constitutional theory  · Judicial review

Constitutional theory is an area of constitutional law that focuses on the underpinnings of constitutional government in the United States. It overlaps with legal theory and democratic theory.

Contents

Overview

Constitutional theory is primarily 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 democratic 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
    • 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

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, in which Alexander Hamilton wrote that the judiciary was the least dangerous of the three branches because it had 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 government--can 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.)

Important thinkers

The following is a partial list:

References

External links

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