The Citizens' Constitution as Fundamental Law

Abstract

In this dissertation, I argue for citizens’ responsibility to participate in constitutional interpretation in certain roles—as voters and jurors, litigants and disobedients, partisans and deliberators—on particular questions. Namely, I develop an account of the Citizens’ Constitution as fundamental law: basic principles that invite citizens’ interpretive participation, that are accessible and justifiable to their common reason.

This constructive interpretation of the practices of American constitutionalism begins with the idea of interpretive responsibility—especially the responsibilities that attach to the roles of officials and citizens. Chapter 1 argues that when these roles require the application of constitutional principles, responsible interpreters should not simply defer to an authority. The rest of the dissertation is organized around three signal values of constitutional democracy—three arguments of political morality in favor of understanding the Citizens’ Constitution as fundamental law, giving pride of place to citizens’ interpretive responsibilities.

First, this understanding of the Citizens’ Constitution as fundamental law promotes what I will call the constitutional bases of respect. By imbuing basic constitutional principles with their individual and shared conceptions of justice, citizens recognize the equal status of their fellow interpreters, secure the institutional foundations of their own self-worth, and acknowledge constitutional injustice when institutions fall short of those aspirations. In Chapter 2, I illustrate this value by examining the claim that “Black Lives Matter” as a claim of fundamental law.

Second, the fundamental law of the Citizens’ Constitution tempers deep disagreements of political morality that pervade our politics, grounding these debates in shared principles that appeal to citizens’ common reason. Chapter 3 looks to the fundamental law tradition to develop an account of constitutional time, which relates those principles in the present to constitutional justice, for the past and in the future. Chapter 4 defends fundamental law against important objections.

Third, understanding the Citizens’ Constitution as fundamental law empowers citizens to acquit their interpretive role responsibilities as voters, jurors, disobedients, and more. Chapter 5 sketches a general theory of citizens’ interpretive role responsibilities, accordingly.