Reflections on American Constitutionalism, 38 American Journal of Comparative Law (Supplement) 421 (1990)
Understanding American constitutionalism can be advanced by distinguishing three matrices of its peculiar traits. The first is the character of political institutions whose roots lie deeply inpre-modern forms of authority. The pivotal role of the Constitution in the life of the nation, the vital energies of judicial review, and many other hallmarks of American constitutionalism are all related to this first source. The second matrix is the distinctive position of the constitutive docum.ent in a culture of predominantly judge-made law. Authoritative t~~xts and judicial decisions vie for pride of place, and explain why so many issues of constitutional law elude conventional classificatory schemes. The third matrix is the need to adapt late eighteenth-century arrangements reflected in the Constitution to altered social needs and understandings. Many intense controversies in contemporary constitutional discourse are related to methods of this aggiornamento.
I shall organize my report around these three matrices, devoting to each a separute section, and try to demonstrate how they illuminate distinctive aspects of American constitutionalism. Before I close, I shall then discuss some challenges to American constitutionalism in our times. Foremost in my mind here will be the problem of adjusting an apparatus devised to contain the government to a time when decisive action is sometimes expected from the State.
Date of Authorship for this Version
Damaska, Mirjan R., "Reflections on American Constitutionalism" (1990). Faculty Scholarship Series. Paper 1582.