Constitutional Ethos: Liberal Equality for the Common Good

by Alexander Tsesis

Overview

Judges, courts, and scholars in the United States agree that the Constitution is the supreme law of the land, but there is much disagreement about its meaning. So what seems to be incontestable truth is riddled with disagreements about every day questions of decision making on matter such as whether people are entitled to government created programs, what rights are fundamental, the criteria for voting, the three branches of governments' several responsibilities, and even who should have the final say in defining the Constitution's meaning. Constitutional Ethos is a groundbreaking investigation into the fundamental principles of constitutional principle, meaning, and interpretation. It explores the core purposes of American representative democracy in light of historical sources, recent precedents, and contemporary debates. Alexander Tsesis argues that a central norm of U.S. law can be derived from the Declaration of Independence and Preamble. This book develops a theory of constitutional law structured on the public duty to protect individual rights for the general welfare. The maxim of constitutional governance synthesizes the protection of individual and public rights. The ideal is neither solely theoretical nor customary but tied to a firm foundation that the people then build upon by lobbying elected officials and petitioning appointed judges. Representative government has an interlinked obligation to the individual and the general welfare. This paradigm for responsible governance sets the baseline against which citizens can hold policy makers accountable to the structural and normative commitments of the Constitution. A pluralistic system must respect human dignity and govern for the betterment of the body politic. Those mandates set the terms for exercising legitimate power at the federal, state, and local levels to protect individual rights to achieve the common good of civil society. Tsesis demonstrates that ethos is binding on the conduct of all three branches of government and their officeholders. His argument challenges the more common U.S. perspective among academics and judges, who typically discount the existence of any objective constitutional value, regarding the document as a construct of social norms. To the contrary, Tsesis shows that the people established the terms of the nation's founding documents to protect universal, unalienable rights. The structure of government provides the mechanisms of those in a pluralistic state to set reasonable limitations for the betterment of society as a whole. Understanding the Constitution's special place in American legal culture is essential for resolving a host of contemporary issues; including, those involving marital, gender, and voting equalities. The state is a means of optimizing the well-being of individuals. Human productivity can best flourish in a society of equals, where talents can be brought to bear in the betterment of self and other members of the community. The Constitution does not create rights but protects those universal ideals of representative democracy first set out in the Declaration of Independence. It further grants authority to political institutions for the enforcement of policies and concrete laws for the betterment of society or some relevant segment of it. Many scholars with leanings in legal realism and process theory believe the authority of government is a social construct created by popular majorities; Tsesis convincingly demonstrates, to the contrary, that even those laws enacted by popular majorities are not authoritative unless they accord with a central maxim of constitutionalism, which is the protection of individual rights for the common good.

Product Details

ISBN-13:	9780199359868
Publisher:	Oxford University Press
Publication date:	02/27/2017
Sold by:	Barnes & Noble
Format:	eBook
Pages:	336
File size:	709 KB

About the Author

Alexander Tsesis is Raymond & Mary Simon Chair in Constitutional Law and Professor of Law at the Loyola University School of Law. He is the author of For Liberty and Equality (Oxford University Press) and We Shall Overcome (Yale University Press).

Table of Contents

INTRODUCTION A. Constitution and Theory B. Written Constitution and Norms C. Theoretical Validity D. Constitutional Rights and Social Equality E. Other Theories PART I: SOURCES OF CONSTITUTIONAL LAW CHAPTER 1: PRINCIPLED CONSTITUTIONAL DISCOURSE A. Complex Society B. Discursive Pluralism CHAPTER 2: DECLARATION OF INDEPENDENCE IN HISTORICAL RELIEF A. Identifying Foundational Theory B. Place in History C. Antislavery D. Popular Government and the Common Good CHAPTER 3: DECLARATION OF INDEPENDENCE AND THE AMERICAN DREAM A. Declaration of Principle B. Declaration and Constitution C. Ethical Standard D. The Declaration and the Structure of Government E. Declaration of Independence, Constitution, and the Reconstruction Amendments 1. Declaration of Independence and Constitutional Meaning 2. The Wisdom of Reconstruction 3. Enforcement of the Ideal F. Judicial Rollback CHAPTER 4: THE PREAMBLE AND GENERAL WELFARE A. From Declaration of Independence to Preamble B. Preamble as Constitutional Gateway C. The People of the United States D. Pluralistic Federalism E. General Welfare and Federal Involvement in Public Programs PART II: ETHOS AND MAXIMS CHAPTER 5: CONSTITUTIONAL ETHOS A. Constitution and Ethos B. Stable Ideal of Government C. Generalities and Facts D. Norms and Aspirations E. Modality and Procedure F. Individual and Society CHAPTER 6: MAXIMS AND GOVERNMENT POWER A. Maxims of Public Trust B. Living Up to Ideals C. Principles and Public Opinion D. Interpreting Principles CHAPTER 7: MAXIM OF CONSTITUTIONAL GOVERNANCE A. Interpretive Construction B. Collective Cooperation C. Rights and General Welfare D. Personal Interests and Social Ends E. Progressive Constitutionalism PART III: INTERPRETIVE CONTEXTS AND APPLICATION CHAPTER 8: THEORETICAL ALTERNATIVES A. Originalism B. Living Constitutionalism C. Neutral Principles D. Living Up to Constitutional Ideals CHAPTER 9: MAXIM CONSTITUTIONALISM TODAY A. Political Community B. Personal Heath and Public Welfare C. State Sovereign Immunity D. Congressional Authority and Judicial Barriers to Its Exercise F. Concluding Remarks

Editorial Reviews

"Alex Tsesis has a well-deserved reputation for creative audacity as a constitutional thinker. An earlier book emphasized the importance of the Declaration of Independence to a full appreciation of the American constitutional project. He further develops this argument about America's 'constitutional ethos' by emphasizing, altogether correctly, the importance to paying full attention to the much-too-ignored Preamble of the Constitution. It is the Preamble, after all, that establishes the point and purpose of the overall constitutional enterprise, and Tsesis consistently offers illuminating insights about the merits of fully integrating the Preamble into the way we think about the Constitution. One hopes that this book will be widely read and that it will lead to a welcome change in the very way constitutional law is taught in American law schools, which now basically ignores the Preamble." -Sanford Levinson, author of Framed: America's 51 Constitutions and the Crisis of Governance

"Among the most interesting parts of this pervasively interesting book is its treatment of the Declaration of Independence and the Preamble as sources of constitutional meaning. Tsesis makes a strong case, historically and normatively, for expanding the domain of constitutional guidance and recognizing that the Declaration of Independence and the Preamble are part of the American constitutional tradition." -Frederick Schauer, David and Mary Harrison Distinguished Professor of Law, University of Virginia

From the Publisher