Justice  /  Book Review

The Original Theory of Constitutionalism

The debate between "originalism" and the "living constitution" rages on. What does history say?
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For all the attention to the legal culture and linguistic practices of the Founding Era that has resulted from the prominence of originalism, comparatively few scholars have focused on the original idea of constitutionalism. What legal and political significance did the act of constitution-making have for the drafters and ratifiers of the U.S. Constitution (and, earlier, the state constitutions)? How might that historical understanding illuminate today’s debates, not just over the nuances of interpreting the constitutional text, but also over political legitimacy in a constitutional order?

Richard Tuck’s The Sleeping Sovereign is not a work of constitutional theory, but rather a careful historical reconstruction of the “invention” of modern democracy—including, centrally, a discussion of the authority that popular constitution-making was understood to have at the Founding.8 Nonetheless, its implications for contemporary constitutional debates are arresting. In a work that contains only a few tentative closing words about the last century-plus of constitutionalism, Tuck shows that today’s originalism, for all its talk of fidelity to law’s origins, is profoundly unfaithful to the very theory of constitutional self-rule on which it made best sense in the first place.

If today’s originalism contradicts its own commitment to constitutional self-rule, though, living constitutionalism fares little better. Tuck’s reconstruction shows that the original purpose of constitution-making was to enable the people themselves to author their fundamental law, rather than leaving that legislation to the decisions of government officials and well-connected elites. Tuck’s account makes it difficult to avoid the conclusion that today’s living constitutionalism fails in both theory and practice to avoid de facto constitutional lawmaking by officials and elites, fairly inviting familiar charges of usurpation—just as today’s originalism fairly invites charges of upholding the tyranny of the dead.

This dilemma is not contingent but rather is deeply rooted in the U.S. Constitution. Both originalism and living constitutionalism ultimately fail to reconcile constitutional authority with popular sovereignty, owing to the way in which the Constitution both emerged from the tradition of democratic sovereignty and betrayed it. This produced a political community that is at once committed to ruling itself and unable to do so.