Do the words of the American Constitution still matter? The question of “the meaning of meaning” in current judicial argumentation

AbstractAs long as the American Constitution serves as the focal point of American identity, many constitutional interpretative theories also serve as roadmaps to various visions of American constitutional identity. Using the debate over the constitutionality of the Patient Protection and Affordable Care Act, I expose the identity dimension of various interpretative theories and analyse the differences between the roadmaps offered by them. I argue that according to each of these roadmaps, courts’ authority to review legislation is required in order to protect a certain vision of American constitutional identity even at the price of thwarting Americans’ freedom to pursue their current desires. The conventional framing of interpretative theories as merely techniques to decipher the constitutional text or justifications for the Supreme Court’s countermajoritarian authority to review legislation and the disregard of their identity function is perplexing in view of the centrality of the Constitution to American national identity. I argue that this conventional framing is a result of the current understanding of American constitutional identity in terms of neutrality toward the question of the good. This reading of the Constitution as lacking any form of ideology at its core makes majority preferences the best take of current American identity, leaving constitutional theorists with the mission to justify the Court’s authority to diverge from majority preferences.

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Biometrics and the privilege against self-incrimination under the American constitution

Sogang Law Journal ◽

10.35505/slj.2021.10.10.3.115 ◽

2021 ◽

Vol 10 (3) ◽

pp. 115-154

Author(s):

Chul Huh Soon

Keyword(s):

American Constitution

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John Marshall and Alexander Hamilton: Architects of the American Constitution

The American Historical Review ◽

10.2307/1845998 ◽

1965 ◽

Vol 70 (3) ◽

pp. 808

Author(s):

Broadus Mitchell ◽

Samuel J. Konefsky

Keyword(s):

Alexander Hamilton ◽

American Constitution ◽

John Marshall

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The Constitution Before the Judgment Seat: The Prehistory and Ratification of the American Constitution, 1787–1791. By Jürgen Heideking. Edited by John P. Kaminski and Richard Leffler. (Charlottesville, VA: University of Virginia Press, 2012. Pp. xxviii, 552. $45.00.)

Historian ◽

10.1111/hisn.12056_16 ◽

2015 ◽

Vol 77 (1) ◽

pp. 123-126

Author(s):

Alan Gibson

Keyword(s):

University Of Virginia ◽

American Constitution

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Pride versus Interest in American Conservatism Today

Government and Opposition ◽

10.1017/s0017257x00019862 ◽

1987 ◽

Vol 22 (3) ◽

pp. 194-205

Author(s):

Harvey C. Mansfield

Keyword(s):

American Constitution ◽

American Conservatism ◽

A Value

The Following is not Intended as a Value-Free Survey of American conservatism today. Less clear, perhaps, will be my general approval of this revolt, although that will emerge soon enough. It remains to announce that I want to offer some friendly advice to American conservatism regarding pride and interest and to recommend to its attention the American Constitution, which so beautifully combines them. American conservatives, perhaps because of the manipulations of American liberals, have lost some of their attachment to the Constitution, and much of their understanding of it.

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