Constitution-As-Commons

Extrapolating from the ideas of Elinor Ostrom and scholars of the commons, the conceptualization of the Constitution as a commons opens the Constitution out to radical, insurgent readings that redefine belonging and ownership—it is no longer the property of state legislatures and courts to (mis)interpret in the service of political expediency/judicial bias/equivocation. It is the people who, through collective action and civic engagement, hold institutions to account and provide the tools and experiences that must shape constitutional interpretation. This article will examine the emergence of the constitution-as-commons as the space for a public, shared, collectively crafted jurisprudence of citizenship, occupying the commons of the nation and the commons that the Constitution in fact is, bringing space and belonging together in unanticipated ways. What are the implications for courts and for the futures of the Constitution of the rupture of a sequestered “constitutional jurisprudence” through the articulation of an expansive, inclusive constitution-as-commons by “we, the people?”