Two Constitutions in Tension

Abstract

Contemporary American constitutionalism’s scholarship tends to primarily observe the constitutional phenomenon from a critical perspective. Orphan and heir of the influence exerted by critical studies in the seventies and eighties, however, it seems that contemporary constitutionalism lacks a common ground, reasonably homogeneous, that could underlie most of its major theories. The diversity of constitutional sources can offer hints on how the constitutional debate became a movement of theoretical dispersal. Obviously, there is just one American Constitution, although it has two dimensions. In this article I analyze how this dichotomy implicates in constitutional scholarship’s tension and fickleness. These conflicts are possible because the written and the unwritten constitutions provide diverse theoretical approaches to the same dilemmas on the current constitutional catalogue (the political system, the civil rights, constitutional legitimacy, legal certainty and constitutional stability, legal regulation, constitutional design, judicial review, etc).

Some issues, joined together in this constitutionalism, converge to the fact that we are dealing with a system which carries two philosophically profound features that flow in opposite directions. It seems that the American constitutional debate’s most influential opinion-makers employ this dichotomy, which is composed by the Common Law Constitution and written Constitution, in order to outline their theories and doctrines. They may find space for almost anything. On one hand, we have precedents, tradition, customs, common sense, and fairness; on the other hand, stability, safety, tolerance, national union, positive canons, modern democracy, and interpretation.

The foremost characteristics of these different dimensions of the Constitution compounds the article’s central aim, under the perspective of their influence on the progress and function of the most relevant contemporary theories debated in the Supreme Court and by law professors. This brief study enables further comparisons of this system with other constitutions.

Keywords: Constitutionalism, Written Constitution, Unwritten Constitution