William & Mary Law Review


The traditional concept of American constitutionalism has long been a basic assumption not subject to tremendous examination. For generations, scholars have understood our Constitution to be the byproduct of a revolutionary war fought for representation and a foundinggeneration concernedwith preventingtyranny in any form. The traditional understandingof American constitutionalism thus consists of two elements: the underlyingprinciple of skeptical optimism, which can be found in the historical context within which the Framers gathered to draft the Constitution, and the political apparatus effectuating that idea— countermajoritarian constraint set against majoritarian power— which reveals itself through reverse engineeringfrom the structural Constitution.

Over the last few decades, two sets of modernist scholars have attacked the activating devices that deploy the traditional vision of American constitutionalism. “Constitutional realists” do not claim to dispute the animating purpose of American constitutional governance, but they claim that the complete American Constitution is represented by more than just the entrenched written document. “Departmentalists” and “popular constitutionalists” also claim to accept the animating purpose of American constitutionalism, but they also claim that the written Constitution forbids judicial supremacy, or at least that it is neither constitutionally required nor normatively desirable.

Neither group acknowledges the other, presumably because they assume they are attacking entirely different aspects of our constitutional structure. But by exposing the fundamental flaws of these two theories and how they irremediably contradict the underlying principle and apparatus, this Article shows modernist attacks on the two primary activating devices of our constitutional government— the singular written document and its prophylactic, insulated judicial interpreter— are attacks on American constitutionalism itself. We therefore develop a more complete, revamped theoretical explanation of traditional constitutionalism that incorporates this understanding. “Premodern constitutionalism” understands that the core of American constitutionalism has a tripartite theoretical foundation. It is the principle of skeptical optimism as well as the political apparatus of countermajoritarian constraint of majoritarian power structures, which implements the principle. And it is the two key structural elements necessary to activate the political apparatus— an entrenched written constitution and a prophylactic, insulated judiciary empowered to interpret it.