A Tradition at War with Itself: A Reply to Professor Rana's Review of America's Forgotten Constitutions: Defiant Visions of Power and Community

Abstract

This essay responds to Professor Aziz Rana's review essay, "The Many American Constitutions," 93 Texas Law Review 1193 (2015).

He contends: (1) my portrayal of American constitutionalism might contain a “hidden” teleological understanding of the development of constitutional law; (2) my notion of "conventional sovereignty" sometimes seems content-free and at other times "interlinked with liberal egalitarianism"; and (3) a focus on failed constitutions "inadvertently tends to compartmentalize the overall tradition."

I answer in the following ways: (1) I reject any sense that constitutional law has moved in an arc of steady progress toward Enlightenment and instead embrace a tradition of warring, eclectic, constitutional ideas; (2) the concept of conventional sovereignty captures the locus of mainstream constitutionalism at any given moment in time and doesn't try to insulate any particular governing ideas from contestation; and (3) the constitutions analyzed are exemplars of these popular concepts--some ignored or rejected by mainstream constitutionalism--but they don't purport to represent the entirety of the tradition.

Keywords: constitution, america, comparative jurisprudence, rights, tradition, constitutional law, constitutional history, culture, norms