The first sense—legalistic constitutionalism—understands the Constitution as a set of rules that can decide policies or cases; these rules are of a sort that can offer definitive answers and that could be employed and enforced by courts. The second sense—political constitutionalism—understands the Constitution as a document that fixes certain ends of government activity, delineates a structure and arrangement of powers, and encourages a certain tone to the operation of the institutions. By this understanding, it falls mostly to political actors making political decisions to protect and promote constitutional goals.
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The two labels—legalistic and political—suggest something about the character of the two approaches. Legalistic constitutionalism refers to formulas and rules. It makes one think immediately of lawyers and judges spinning elaborate constitutional doctrines and devising multi-pronged "tests." Like ancient Egyptian priests, these legal experts speak an occult jargon that few citizens can grasp. Political constitutionalism, by contrast, is premised on the view that much, even most, of what determines whether the Constitution is being respected stems from the accumulation of ordinary policies on issues ranging from education to energy and to the environment. The real work of defending the Constitution accordingly falls to statesmen and parties acting in the political realm and by political means; they must embrace positive programs to protect the Constitution that go well beyond anything that courts could determine.
As Ceaser points out, the legalistic view views the Constitution in a vacuum -- largely unconnected with the greater political universe in which it which it was created to serve. Ceaser discounts Rick Perry's stumbling explanation of how he would deal with reining in the entitlement programs set up by the New Deal and the current conservative arguments against Obamacare as evidence of the problem with the purely legalistic method.
Here is how we have to go about restoring the understanding of political constitutionalism:
Understanding the formal properties of political constitutionalism is a necessary first step in reviving the concept. But it can only be restored if it is put to work in the form of an actual program, which means that there are likely to be competing programs that are offered. Political constitutionalism is often partisan, as is evident from examining the positions of the political parties for much of the 19th century. Each party had its own interpretation of the Constitution which it pressed openly and vigorously. Only in our times has political constitutionalism died out or been turned into the deceptive exercise of hiding a party's real intent.
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Conservatives today have shown the greatest interest in restoring the Constitution. But they face major obstacles of their own in developing a credible program of political constitutionalism. Many conservatives need to resist the temptation to "ideologize" the Constitution by imagining that their political theory is not just permitted under it, but dictated by it. It cannot be forgotten that the Constitution was instituted to replace the Articles of Confederation in order to allow for the exercise of broad powers in certain areas. How such powers are to be used is left to the winners of elections, who are entitled to promote their ideas of good government within the boundaries of the supreme law. If conservatives believe that some of these powers are being exercised in an undisciplined way, it is for a conservative party to make this case. The Constitution cannot do all the work that a party must do on its own. To think otherwise, and to hold that courts could enforce most conservative doctrines, amounts to legalistic thinking with a vengeance.
Please read the whole thing.
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