Saturday, August 29, 2015

Of Ferguson and Constitutional Theory // Mark Graber// Balkinization

Constitutional discourse today focuses on abstractions.  The Affordable Care Act is asserted to be an overreach because the "commerce clause" does not authorize the national government because "The individual mandate...does not regulate
existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce." (C.J. Roberts -NFIB v. Sebelius)

Same sex marriage must be recognized because it is a matter of "liberty" (Justice Kennedy - Obergefell v. Hodges).

But there is another way to approach the entire problem: how can we assure the health of our people?  Will we advance the "pursuit of happiness" by allowing people to bond in marriage regardless of sex?  That approach is a functional constitutionalism - not one that seeks to limit government.

The abstract approach leads those who write about the constitution to pay little heed to the question: how can we improve the lives of the people? Mark Graber addresses the problem. - gwc

Balkinization: Of Ferguson and Constitutional Theory

by Mark Graber

***Perhaps constitutional theory is partly returning to its late eighteenth century roots. A good deal of scholarship suggests that the main impetus for the Constitution of 1789 was a sense among elites that they were losing in state politics. Nationalizing politics would greatly improve the chance that rights elites believed were fundamental (contracts) would be protected while throwing obstacles in the paths of rights (binding instructions) less affluent Americans wanted protected. The Constitution of 1868 had a different premise. The persons responsible for the Fourteenth Amendment were far more concerned with constructing a constitutional politics that would protect persons of color than with determining the best interpretation of equal protection of the law, a matter on which they disagreed. If the citizens of Ferguson, Missouri are to be restored to their central place in American constitutionalism, we need to think more about the constitutional questions concerning how a constitutional order can be constructed that treats all persons with equal concern and respect and less about the interpretive questions historically at the margins of the constitutional enterprise.

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