Constitutional Rights and Powers of the People

by Wayne D. Moore

Overview

American constitutionalism rests on premises of popular sovereignty, but serious questions remain about how the "people" and their rights and powers fit into the constitutional design. In a book that will radically reorient thinking about the Constitution and its place in the polity, Wayne Moore moves away from an exclusive focus on courts and judges and considers the following queries: Who is included among the people? How are the people politically configured? How may the people act? And how do the people relate to government and other representative structures? Going beyond though not excluding relevant discussions of specific constitutional texts (such as the preamble, articles V and VII, and the ninth, tenth, and fourteenth amendments), Moore examines historical material from the antebellum period, such as the opinions of U.S. Supreme Court justices in the notorious Dred Scott case and significantly different perspectives from the writings and speeches of Frederick Douglass. He also looks at influential thinking from the founding period and examines precedents set during prominent controversies involving the establishment of a national bank, regulations of the economy, and efforts to limit sexual and reproductive choices. The penultimate chapter explores issues raised by claims of state interpretive autonomy, and the conclusion models various dimensions of the constitutional order as a whole. The book offers fresh insights into central problems of constitutional history, theory, and law.

Originally published in 1996.

The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

Product Details

ISBN-13:	9780691629667
Publisher:	Princeton University Press
Publication date:	03/21/2017
Series:	Princeton Legacy Library , #5207
Pages:	310
Product dimensions:	6.40(w) x 9.30(h) x 1.00(d)

Table of Contents

List of Figures

Preface

Introduction. Reconceiving Constitutional Politics 3

Ch. 1 Toward Constitutional Citizenship: Official Pronouncements 13

Ch. 2 Toward Constitutional Citizenship: Unofficial Commitments 37

Ch. 3 Acting through Government and Independently 66

Ch. 4 Enumerations and Implications 105

Ch. 5 Problems of Practical Politics 152

Ch. 6 Reconceiving Supreme Powers 173

Ch. 7 Exercising Powers and Securing Rights 196

Ch. 8 Interpretive Autonomy Revisited 239

Conclusion. We the People: Reflections 275

Postscript 287

Index 291

What People are Saying About This

From the Publisher

"Wayne Moore is asking fresh and interesting questions about what it means to participate in a constitutional regime based on the idea of popular sovereignty.... Anyone interested in American Constitutionalism would benefit from this book."—Sanford Levinson, University of Texas, Austin

Editorial Reviews

Wayne D. Moore promises (warns?) his readers that his book on American constitutionalism is often very abstract, that access to his argument will require active engagement. By the end of his book no one will accuse him of deception. Constitutional Rights and Powers of the People is an exercise in complexity, in which it is the author's intent to disturb the equilibrium of anyone who ever thought that the meaning of American constitutionalism could be rendered univocally. There are several dimensions to this complexity, all of which relate to what Moore understands to be the "richly textured character of American constitutionalism." He is of course not the first to appreciate the intricacy of constitutional structures and relationships; nor is he the first to abjure the lure of "so called 'right answers'". Moreover, there is no particular novelty in the teaching he extracts from the richness of the American constitutional tradition, namely that we should expose "the myths of constitutional determinacy." But the entire package within which these familiar positions takes shape is often refreshingly original, even if the author occasionally tries the reader's patience with what seems to be a studied avoidance of the possibilities of simplification. Moore's subject, broadly conceived, is the constitutional politics of popular sovereignty. He examines competing and overlapping conceptions of "the people" and their "rights" and powers." This is done in the course of pursuing four related questions: 1) Who is included among "the people"? 2) How are "the people" politically configured'? 3) How may "the people" act? 4) How do "the people" and their constitutional prerogatives relate to governmental institutions and other representative structures? The invitation to explore these questions is present in the Constitution's Preamble, which like many such documents is notably -- and perhaps even mischievously -- vague about the People in the name of whom the entire constitutional enterprise is undertaken. (In Germany, for example, the basic Law's Preamble commences with an invocation of "The German People in the Laender of....," and then concludes with a reference to the "entire German people.") The progression of Moore's argument is tightly reasoned if somewhat loosely organized. It begins with a discussion of constitutional citizenship that features an extremely insightful and provocative treatment of Frederick Douglass' views on constitutional amendation in the absence of formal authority. Moore captures well Douglass' recognition of "the organizing functions of the Constitution as a symbol of national ideals and as an instrument of collective power." His discussion suggests that "'the people' have had multiple identities and have acted in various capacities to achieve a range of constitutional ends." The argument for multiplicity then engages the debates between Federalists and Anti- Federalists, ultimately culminating in a series of diagrammatic mappings that portray distinctive conceptions of constitutional structures. Moore insists on viewing this debate -- especially as it concerns contested arenas of power between federal and state authority -- as essentially unresolved, which is to say that the Constitution is not correctly to be described as a Federalist creation. He then examines several landmark cases (e.g., McCulloch v. Maryland, Griswold v. Connecticut) in light of his mappings, discussing somewhat less abstractly than in the preceding chapters the implications of interpretive plurality. The radical open-endedness for which he contends, and upon which he rests his understanding of popular sovereignty, is finally placed within the context of the Kentucky and Virginia Resolutions. Moore concedes that "states acting separately may pose serious threats to principles of American constitutionalism [but] cutting off the states' contributions to interpretive dialogue would threaten more directly the Constitution itself." Interpretive disputes that follow from this plurality should be construed positively "as signs of constitutional vitality, not just failure." This leads him to conclude that "Constitutional theory and practice should...be expanded to embrace the core principles of state interpretive autonomy that are common to the Kentucky and Virginia Resolutions." There is much in Moore's work that merits very serious attention from constitutional theorists. While some of the opaqueness of his argument is perhaps attributable to the regrettable tendency in contemporary constitutional theorizing to confuse complexity with profundity, his rendering of the multifaceted character of popular sovereignty represents a distinct contribution to the literature on American constitutionalism. His conclusions regarding constitutional indeterminacy will no doubt appeal to those inclined to follow the lead of critical legal scholarship, although his political agenda appears to differ significantly with what we normally associate with that movement. In fact, to this reviewer at least, one of the striking and most original features of the work is the way in which its conclusions regarding indeterminacy and plurality get located within a rather conventional normative framework of constitutional understanding. Let me, however, suggest one difficulty with the author's principal line of argument, a difficulty that actually flows from a matter of substantial agreement between us. Thus I too adhere to a position of interpretive plurality, in the sense that I am reluctant to acknowledge the legitimacy of a judicial monopoly over constitutional interpretation. For that reason Douglass' role in the evolution of constitutional meaning and understanding is appealing to me. Similarly, Abraham Lincoln's reaction to the Dred Scott decision, in which he urged Congress not to feel politically bound by the constitutional determinations of the Supreme Court, has always seemed to me basically right. Lincoln's specific position was that "if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made...the people will have ceased to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal." For him, as for Moore, the recognition of interpretive plurality as a necessary component of both popular sovereignty (and hence American constitutionalism) was critical. But Lincoln's argument for interpretive plurality (and I think Douglass' as well) did not rest upon an understanding of constitutional meaning as essentially indeterminate and open-ended. On the contrary, it presumed certain right answers to the most important constitutive questions, and for that reason withdrew from the Court entitlement to any claim of finality with regard to unsettled principles of constitutional import. To condense a complex argument to its essentials, interpretive plurality represents the political reality required by constitutional aspiration, the latter referring, in Lincoln's words, to "the right, [for which] enforcement might follow as fast as circumstances should permit." Nothing, of course, obligates Moore to embrace this position, but he needs to confront it more directly than he does, if only to provide a more convincing argument for his alternative rendering of constitutional plurality. What is at stake in that rendering is nicely illustrated in Moore's postscript, which focuses on the recent case of Term Limits Inc., v. Thornton. Moore considers the majority opinion of Justice Stevens and the dissenting opinion of Justice Thomas, finding them to be remarkable examples of the "unitary" and "pluralistic" models of reasoning that he described earlier. It is, furthermore, a case that "underscores the importance of rethinking issues of constitutional character and structure with reference to principles of popular sovereignty." What Moore finds is that the invocation of "first principles" by both justices -- to affirm nationalistic reasoning by Stevens and to present an expansive conception of reserved powers by Thomas -- are both reasonable interpretations of constitutional meaning that draw respectively upon Federalist and Anti-Federalist traditions. I understand Moore's purpose here as one of encouraging further thought and reflection on questions of "constitutional architectonics," without foreclosing debate and deliberation through the injection of "dichotomous rhetoric" into the conversation. In other words, let's not derail the quest for nuanced constitutional understanding by declaring victory for one set of first principles over another. This seems to me an altogether reasonable analytical strategy for making sense of a document whose evolution has indeed drawn upon a variety of historical sources. But in another respect it is a curious application of the concept of first principles, for if the term means anything it is that we can identify a constellation of ideas as foundational, and in so doing construct a constitutional edifice (through interpretation as well as formal amendment) that can be described as the most appropriate realization of expectations incorporated within the foundations. Moore may be wise in urging respectful consideration of both Stevens' and Thomas' radically different understandings of our constitutional foundations. Heuristically there is much to be said (and for the most part Moore says it quite well) for keeping as many arguments as possible in play, for removing constraints on the opportunities for constitutional reconceptualization. But first principles also possess a dimension of exclusivity, such that their easy accommodation with competing models of constitutional architecture cannot so readily be arranged. At the end of the day it is also wise to be reminded of our need to make difficult choices.

Gary Jeffrey Jacobsohn

"Winner of the 1997 C. Herman Pritchett Award, Laws and Courts section of the American Political Science Association"

One of Choice's Outstanding Academic Titles for 1997

"The entire package within which these familiar positions take shape is often refreshingly original.... There is much in Moore's work that merits attention from constitutional theorists."—-Gary Jeffrey Jacobsohn, The Law and Politics Book Review

"[Moore's] reflections on constitutional law are excellent. . . . This book will be useful to professors of Constitutional Law and possibly to students in courses in advanced studies of the Constitution. . . . Professor Moore's treatment of the Dred Scott decision is especially interesting since it weaves in materials that will not be familiar to many readers."—-Robert F. Drinan, Law Books in Review

From the Publisher