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Constitutional theory |
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Please help improve this article or section by expanding it. Further information might be found on the talk page. (January 2007) |
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The examples and perspective in this article or section may not represent a worldwide view of the subject. Please improve this article or discuss the issue on the talk page. |
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| Constitutional Law of the United States of America |
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| 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.
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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.citation needed This is in part because Marbury v. Madison, which established this judicial power in the early 19th century,citation needed has given the judiciary near-final authority on constitutional meaning.citation needed
Aside from judicial review, constitutional theory in general seeks to ask and answer the following questions:
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.)
Modern constitutional theory owed much to Bickel's thinking, and much that has been written has had to grapple with the idea of the "countermajoritarian difficulty" in some way.citation needed
The following is a partial list:
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