Founding-Centered Constitutionalism

[Robert Justin Lipkin]

       I think that our "founding-centered constitutionalism" distorts our understanding of American self-rule. Two critical reasons exist, in my view, why we cannot answer the question of what is America's conception of self-rule by concentrating on the (famous) Founders.  First, I think the relevant body of people who in fact really were the "Founders" is the "founding population," those people who fought in the revolutionary war and voted to ratify the Constitution, not a particular group of men whose views about self-rule, arguably, have been historically 'preserved.' The views of the later group serve as an instrumental means for understanding the canonical views of the former. But our fixation with those particular individuals called "the Founders" distorts the recognition that the founding population is the normative authority for launching (and the basis upon which to interpret the meaning of) the American experiment, not Madison, Hamilton, and so forth. Much deeper historical analysis, therefore, is required to ascertain whether the founding population understood republican theories of self-rule. For example, it is often stated that the Founders (Madison and company) feared democracy. Even if that's true, the Constitution cannot be interpreted to reflect this fear if two conditions obtain. (1) the existence of plausible democratic interpretations of the Constitution, and (2) the likelihood that the founding population had no such fear of democracy. I am not a historian, and so cannot contribute to an examination of the founding population's view of American self-rule.  That said, without such an analysis of the founding population's view of self-rule we are left with only what may be called "the surface structure of America's conception of self-rule at the time of ratification," not "its deep structure."

       Much more important as a reason not to practice founding-centered constitutionalism is the obvious fact that whatever the views of the Founders or the founding population, American constitutionalism (and therefore the American conception of self-rule) has been explicitly transformed through Art. V amendments as well as informal transformations throughout the subsequent history of America constitutionalism and politics. Therefore, even if we should concentrate on the founding population as the true "Founders" and even if the true Founders views on self-rule can be known, the contemporary American conception of self-rule determined by formal and information constitutional transformations of American constitutional society is likely to be vastly different from the original conception. It is this present conception that, I believe, should be operative today. While this present conception still embraces representationalism, the rhetoric of contemporary self-rule, on both the left and the right, I would argue, embraces the idea of representative democracy, not republicanism, as that term was understand by Madison and company, or even for that matter, as the term is understood today.

       In any event, it is an answer to the question what is America's conception of self-rule now that, I think, we should attempt to explicate and evaluate. With that question in mind, Founding-centered constitutionalism, is a beginning, but only a beginning. It is a mistake to think that this question can be answered by concentrating too heavily on what the famous Founders thought. Perhaps courts and commentators in 1800 should have concentrated on the famous Founders (or the founding population), but understanding the meaning of American self-rule today is impeded not advanced by doing so.

Bobby Lipkin
Widener University School of Law
Delaware