Reimagining Law and the Constitution: Carl Schmitt and American Constitutional Scholarship

and Xiaodong DingORCID iD: https://orcid.org/0000-0001-7902-255X

Abstract

This article studies the debate between Schmitt’s theory and legal positivism, which Schmitt identifies as a typical liberal theory of law. Schmitt’s theory, I argue, provides a powerful critique of legal positivism, while offering a meaningful, alternative understanding of law that begins not with norms, but with the will of a legitimate decider. To demonstrate the continuing relevance of the debate Schmitt had with legal positivism, I turn to what I describe as a similar legal positivism/Schmitt debate in American constitutional scholarship. Ultimately, I take a side in this debate, arguing for a fully Schmittian understanding of the Constitution as the will or continuous decision of the people, rather than as positive constitutional norms existing independently of politics.

1 Introduction

Today, the idea of the rule of law has achieved a consensus position among liberal theorists. Liberal theorists may disagree about the exact definition of the rule of law, but they generally agree that compared to the rule of men, the rule of law is a better form of governance. As John Adams puts it, a legitimate government is ‘a government of laws, not of men’.1 It is law, not men, that should govern in a modern society.2

Liberal theories tie the legitimacy of government under law to qualities of objectivity, consistency, and reason-giving.3 Claiming these virtues for law, the theorists imagine law to consist of pre-determined or pre-fixed positive norms.4 When men are to make decisions in such a political system, they can always turn to law and discover an already established normative framework capable of directing the outcome of the decision.5 Law does not necessarily guarantee the best decisions, but this normative framework ensures the relative objectivity and non-arbitrariness of decisions made within a polity governed by law.6

In response to this liberal or positive understanding of law, nobody provides a more fierce and provocative critique than Carl Schmitt. Schmitt believes that liberal theories fundamentally misunderstand the nature of law insofar as they think or imagine law to consist of positive norms. The positivist thinking about law, Schmitt argues, not only fails to bring objectivity to law, but it also makes law meaningless as a factor in concrete life. By limiting ‘all expressions of state life through a series of normative frameworks’ and transforming ‘all state activity into competencies’, legal positivism makes law an empty shell.7

In fact, Schmitt not only criticizes the positivist thinking about law, he also calls for an alternative, decisionist thinking of the nature of law. For Schmitt, ‘[l]aw is concretized only in a judgment, not in a norm.’8 It is the decision or judgment, not the norm, that constitutes the essence of law. Accordingly, it is the exception, not the rule, that reveals the true character of law. As Schmitt famously puts it, ‘the exception can be more important than the rule, not because of a romantic irony for the paradox, but because the seriousness of an insight goes deeper than the clear generalizations inferred from what ordinarily repeats itself.’9 Law, therefore, should be re-imagined as the will of an authoritative decider. A constitution, similarly, should be re-imagined as the people making decisions and actualizing their will in concrete life.

For many contemporary American legal scholars, Schmitt’s legal and constitutional theory is irrelevant at best and wrong or dangerous at worst. They believe it irrelevant because the theory was largely written in the first half of the twentieth century and in a German context. Most of his writings were aimed at criticizing Kelsen, whose work has had little influence in American jurisprudence. Americans think Kelsen’s pure theory of law resembles Christopher Columbus Langdell’s theory of law’s autonomy, which no longer enjoys much support in American legal scholarship. Langdell’s views did not survive the American legal realist movement10; Kelsen never penetrated the dominance of the realist movement.11 Therefore, for many American scholars, it seems that Schmitt’s theory of law and constitutionalism and its critique of legal positivism is irrelevant for American constitutional theory.

For many other American liberal scholars, Schmitt’s theory is simply wrong and dangerous. These scholars believe that Schmitt’s call for a decisionist understanding of law and his praise of the exception undermine the virtues of rule of law. William Scheuerman, for example, argues that Schmitt’s theory would mean the ‘end of law’.12 Under Schmitt’s theory, there would be no norm that provides meaningful guidance and restraint on human decisions. Politics would consist of nothing but ‘norm-less will’ and ‘unbridled subjectivity’.13

In this article, I make a different argument about Schmitt’s theory. Schmitt’s theory, I first argue, provides a powerful critique of legal positivism, while offering a meaningful understanding and re-definition of law. As Schmitt correctly shows us, legal positivism adds no objectivity to legal interpretation by imagining law as norms. In concrete life, it is always an actual subject – individual or collective – who decides, sustains, and actualizes law, which includes both norms and exceptions to norms. Therefore, we cannot usefully imagine law apart from the political will of the legitimate decider. In a modern democratic society, which considers the people as the only legitimate foundation of power, this means that law should be imagined as the people’s will. The rule of law, accordingly, should be imagined as rule by the people exercising their will. Only such an imagination of law and the rule of law can be meaningful.

Second, I argue that Schmitt’s theory remains highly relevant to American legal scholarship, especially constitutional scholarship. In American constitutional scholarship, there is a similar legal positivism/Schmitt debate. The debate within modern American constitutional scholarship highly resembles legal positivism/Schmitt debate in Germany in the first half of the twentieth century. On the one hand, positivist thinking about law still dominates American constitutional scholarship, although not necessarily in the form of Kelsenian positivism. On the other hand, there are Schmitt-like theories that provide powerful critiques of the positive thinking regarding the American Constitution. While these critiques rarely cite Schmitt explicitly, I argue that it demonstrates the continuing importance of Schmitt’s legal theory to understanding the rule of law even in the West.

Lastly, I argue that while there are Schmitt-like theories in American constitutional scholarship, all of these theories are only faint-hearted. They remain bound to positivist thinking about the Constitution. Worse, their uncertain commitments produce serious theoretical inconsistency. A consistent and persuasive constitutional theory, I argue, requires a fully Schmittian understanding of the Constitution.

In Part I, I focus on Schmitt’s critique of legal positivism and his political understanding of law. In Part II, I focus on common law theories in American constitutional scholarship and the Schmittian character of the critiques these theories invoke in response. In part III, I focus on what I will call ‘written law constitutional theories’in American constitutional scholarship. Here too we find the same pattern of positivist theories invoking a Schmitt-like critique in response. In Part IV, I provide a fully Schmittian understanding of American constitutionalism and argue that the Schmitt-like American constitutional theories so far reviewed are only faint-hearted. I go on to identify their theoretical inconsistencies.

Before starting detailed analysis, it should be noted that I use the concept of liberal theory to refer to a large group of theories that differ in their details. The main purpose of this work is to compare Schmitt’s legal and political theories with their opponents and for that purpose only the shared features of liberal theories are relevant. As Oliver Wendell Holmes, Jr teaches us, ‘we must think things not words’.14 I hope readers will pay attention to the sharp contrast between Schmitt’s theory and the generally accepted Western understanding of the relationship of law to politics. Debates within Western liberal political theories are not important to this article.

2 Schmitt’s critique of legal positivism

Schmitt’s critique of legal positivism is very different from the critique of legal positivism that arose in Anglo-American jurisprudence. While the criticism of legal positivism in Anglo-American jurisprudence largely focuses on whether law can be separated from morality,15 Schmitt’s critique of legal positivism focuses on the way it imagines the operation of positive norms. For Schmitt, thinking of law as norms not only brings no objectivity to law, but it also misunderstands the essential nature of law.

2.1 Two forms of legal positivism

According to Schmitt, there are two types of legal positivism. The first type of legal positivism is what he calls pure normativism, under which law is imagined as pure norm or pure norm system. As Schmitt puts it, pure normativism ‘isolates and absolutizes the norm or rule’. ‘Every rule, every legal norming, regulates many cases. It elevates itself above the individual case and above the concrete situation’.16 All human activity is imagined as subject to the governance of norms.

For Schmitt, the typical pure normativist is Hans Kelsen. Law, Kelsen argues, should be understood as a hierarchy of norms that together constitute a system. In such a system, every norm derives from another, higher norm. The validity of an inferior norm derives from a superior norm, and eventually the whole system derives from a Basic Norm or Grundnorm. The main task of legal theory, accordingly, is to develop a pure theory of law that explains the character of this normative, ordered system. That explanation will exclude all external value judgments from operating in law. No such external values can enter, for every norm is derived from a superior norm. The pure theory of law, Kelsen argues, would ensure the objectivity of law.17 To use Schmitt’s words, law imagined as pure norms could claim ‘impersonal, objective justice against the personal choice of the decisionist and the feudal, ständischen, or other pluralism of the orders.’18 Law on this view is thought to exist in an autonomous realm that is independent of all other value judgments.

The second type of legal positivism, Schmitt argues, understands law as a combination of norm and decision [hereafter ‘combination thinking’ or ‘combination theory’]. Combination-thinking positivists, on the one hand, accept extra-norm decisions as the legitimate foundation of law. The ultimate validity and legitimacy of law, according to combination-thinking positivists, derives from a decision, rather than from a higher norm or a previous norm. A law that imposes taxes on citizens, for example, derives its validity or legitimacy from a previous decision of a parliament, a king or other legitimate decider, rather than from a higher norm that authorizes the imposition of taxes.

On the other hand, combination-thinking positivists also imagine law to exist in the form of norms. Under combination thinking, decision-making is by nature unstable and potentially arbitrary. A norm, by contrast, is by nature impersonal and non-arbitrary. Therefore, a decision must be transformed into a norm; the decision exhausts itself in the construction of the norm. Only a norm would ensure that the decision could be objectively preserved. For combination-thinking positivists, the process of transforming decision into norm is similar to the sudden freezing of water. While water is fluid and amorphous, ice is stable and has a clearly defined shape or form. Just as the sudden freezing of water stabilizes an original shape, the transformation of decision into norm ensures the objectivity of the decision.

Take the tax law mentioned above for example. Combination-thinking positivists do not imagine that law as the continuous decision of a parliament or king. Rather, they imagine the law as a norm that carries out a previous decision of the parliament or the king. Under such an imagining of the tax law, it gains an objectivity that allows it to be applied even to its own source – the parliament or king. The norm set free of the decision can now limit the arbitrariness of human decisions, even thought that is its own source.

According to Schmitt, typical combination thinkers of law are Karl Bergbohm in Germany and Jeremy Bentham and John Austin in England. Bergbohm, while arguing that all laws are enacted or decided upon by men, also argues that law must be understood as ‘something normative, something functioning as an abstract rule intended to be followed’.19 Bentham and Austin, similarly, argue that law should be understood or imagined as a combination of decision and norm. Under Bentham and Austin’s theory, law is first of all the sovereign’s decision. There is no natural law or some kind of higher law that grounds the authority of law. However, Bentham and Austin also imagine law as existing in the form of general norms. Both link the objectivity of law to the form of norms.20

For Schmitt, pure normativism and combination theory are both forms of legal positivism. Notwithstanding the difference between these two theories, they share a core imagination of law: law should be understood or imagined as norm. Legal positivists believe that only so can law can bring objectivity to politics, thereby reducing the necessity of personal value judgments and any other form of extra-norm decisions.

2.2 Legal positivism’s vain search for objectivity

Schmitt believes the objectivity legal positivists claim is only a wish that exists in their imagination. He denies that the norms upon which legal positivist focus can bring or add any objectivity to law as it actually works. In concrete life, neither form of legal positivism can provide those who must interpret and apply the law an objective measure.

Pure normativism, first of all, simply offers no method or rule of legal interpretation. It is simply impossible for legal interpreters to study and identify a single objective meaning of a pure norm. Whenever legal interpreters disagree with each other about the meaning of a norm, all pure normativists can offer is to ask legal interpreters to look at the perfect pure norm system. For example, when people disagree whether tax law should treat a cohabitant relationship as a familial relationship, all pure normativism can do is claim that the norm system already has an answer to this question. This is not persuasive in the face of continuing interpretive disagreement, which is the normal state of the law.

Pure normativism, therefore, brings no objectivity to decisions in concrete life. It makes law objective at the expense of making law irrelevant in concrete life. Law is supposed to provide guidance for disagreements or for the ‘disorder’ of the concrete situation, but under pure normativist thinking, legal norms offer no answers capable of solving legal disagreements. For pure normativism, what matters is always the imagined objective norm. As Schmitt puts it, ‘[a]ll valid norms, so long as they are valid, are naturally always “in order”; the “disorder” of the concrete situation, in contrast, does not interest the normativist who is only interested in the norm.’21

Schmitt also denies that combination theory can provide any objectivity to concrete life. Combination theorists think the transformation of decision into norm can ensure the objectivity of law, but combination theory does no better than pure normativism in the face of interpretive disagreement. Looking to the source of the norm in a decision does not eliminate interpretive disagreement. Rather, it shifts the point of interpretive controversy to the meaning of a historical act – the decision. But history is no more objective than norms. When combination theorists interpret a norm by referring to its source, they will inevitably make a choice based on a personal point of view or their own normative commitments.

A combination theorist has to decide whether to emphasize the norm or the decision that gives rise to the norm. He must choose between ‘the will of the legislator’ and ‘the will of the statute’. The theorist could contend that the positive norm aims at carrying the will of the legislator or the legitimate decider. Legal interpretation, in that case, should look to the legitimate decider’s intention. Alternatively, the theorist could contend that since ‘[o]nly that published as a statue becomes a statute’,22 the intention of the legislator is not relevant to the interpretation of the law. In that case, the combination theorist collapses into the pure normativist at the moment of interpretive controversy.23

If the combination theorist chooses ‘the will of the legislator’ as the measure of legal interpretation, he or she would still find various wills or decisions of individual legislators. As Schmitt argues, it is difficult enough or even ‘factually impossible to ascertain the real, psychological content of the will of a definite human being … for a definite period of time’.24 For a modern legislature, the hope of finding a single factual decision or the content of the collective will is simply impossible.

The combination theory, therefore, also fails to make law objective. It too presupposes the positivity and objectivity of law. It only presupposes objectivity in the form of ‘the real certainty, firmness, and calculability of that which is actually realizable, whether that be the decision of the legislator or whether it be the statute emanating from his decision and the legally calculable decision emanating from that statute.’25

2.3 Schmitt’s political understanding of law

For Schmitt, legal positivism not only brings no objectivity to law, but also misunderstands the nature of law. Kelsen’s theory imagines law as a set of norms with an independent existence. It holds that the validity of law arises out of enactment and sustains itself post-enactment. Yet a legal norm is an abstraction; it cannot exist independently of a will. In real life, the very existence of law always depends upon the legitimate decider’s willingness to accept certain norms as law. The law is not something apart from this willful affirmation. In a modern democratic society, the legitimate decider is the people, which means that law depends on the people’s recognition and affirmation. Norms become law when they are recognized and affirmed by the people.26 There is no moment of separation as imagined by Kelsen’s theory. Were that moment ever to arrive, the validity of the law would evaporate. To use Schmitt’s words, without the people’s willingness to continuously recognize and affirm a norm, it would become nothing more than ‘historical legal materials’ at best and ‘wastepaper’ at worst.27 Therefore, the very existence of law presupposes the omnipresence of the people. Even after the enactment of a law, the sovereign people have to continue to affirm and sustain it.

Perhaps more importantly, a legal norm cannot help itself to be realized or actualized in concrete life. Legal positivists such as Kelsen imagines law as a set of norms that could exist independently, they pay little attention to the actualization of law. They simply presuppose that law has binding force. However, the fact is that law as norms are passive until someone or some group does something with them. Law as norms alone can never have any binding force at all. The norms themselves simply cannot bring any changes to the concrete life. As Schmitt writes, law as norm ‘cannot use, apply or enact itself; it cannot itself interpret, define or sanction: moreover, it cannot – without ceasing to be a norm – designate or nominate those concrete persons who are supposed to interpret or to use the law.’28 For law to restrain power, there must always be responsible people to husband the law. Without the people’s responsible political action to take care of the law, law would only exist as norms or wishes that have no impact on concrete life. Positivism such as Kelsen’s theory, therefore, makes law irrelevant to concrete life by imagining law as a set of pure norms.

Based on this critique of legal positivism, Schmitt provides a political understanding of law. Law, according to Schmitt, should be re-imagined and re-defined as the legitimate deciders’ will or continuous decision. The norm or rule, under this definition, is only a part of law. ‘Norm or rule thinking’, according to Schmitt, is only ‘a more limited and indeed a more derivative part of the whole and complete jurisprudential purpose and application.’29 Viewed through the lens of the political-will definition of law, norm is only a tool and a byproduct of law. It is a tool that a legitimate decider uses to realize its will in concrete life. If a king or a parliament refuses to acknowledge a tax norm, or if a king or a parliament is overthrown, then a tax norm would immediately become what Schmitt call ‘wastepaper’.30

Exception, according to Schmitt, is also a part of law. For liberal theorists or legal positivists, Schmitt’s emphasis on the exception is a barefaced assault on the pursuit of the rule of law. It shows Schmitt’s preference for non-objective and arbitrary politics. Yet, if a norm can never bring anything objective to law and a norm is dependent on law as an expression of the will, then a willed exception cannot be inferior to a norm. An exception to a norm, whether in the name of morality, emergency or reasonableness, is simply another option or measure that a legitimate decider can choose to realize its will.31

A look at an individual’s self-rule will help us better understand Schmitt’s critique of legal positivism and his political understanding of law. When one ‘enacts’ a rule of running for an hour everyday so as to keep fit, for example, it is meaningless to imagine the actual running as a rule-following activity. In concrete life, for the rule to remain valid and to exist as a rule, the individual has continuously to affirm his or her interest in exercise. He/she has to continuously acknowledge and affirm the rule of exercising. Moreover, for the rule to be meaningful, the individual must take substantial measures to actualize the rule. It would be meaningless if one continuously acknowledged the validity of the rule of running while always remaining a couch potato at home. A rule remains a rule only if there is care for it. A political rule – that is, a law – requires a certain sort of community of care.

Viewed from this perspective, individual self-rule under law means nothing but an individual exercising his/her will. Similarly, the rule of law means nothing but the legitimate decider or the people exercising their will. In both the activity of an individual’s self-rule and the activity of the rule of law, a rule is only a means and a product of the individual or the legitimate decider’s will. A rule is employed by the individual or the legitimate decider to realize its will. The individual or the legitimate decider must decide either to affirm the rule or to affirm an exception to the rule. The exception, therefore, has the exact same source as the rule. Neither can have any priority.

Schmitt’s legal and constitutional theory, therefore, provides a more serious understanding of law than Kelsen’s theory. Schmitt considers law not as a set of norms that exist on paper nor only as a belief system that exists in the people’s imagination.32 Rather, it is the outcome of the serious commitment of the people and a reflection of the people’s deep will.33 Under Schmitt’s legal theory, the people should not only enact law and legitimate the law, but they should also affirm the law and be responsible for actualizing it.

3 Schmitt/Positivism debate in America: Common law constitutionalism and its critique

Schmitt’s critique of legal positivism is not only of historical interest. If we turn our attention to American legal scholarship, especially constitutional scholarship, we find a similar Schmitt/legal positivism debate. The debate within American scholarship is strikingly similar to the debate between legal positivists and Schmitt in Germany in the first half of the twentieth century. On the one hand, legal positivist thinking still dominates American constitutional scholarship. Most constitutional theories still imagine the Constitution as a set of norms or norm-like precedents, doctrines, and principles. On the other hand, there are also American constitutional theories that provide powerful and insightful critiques of this positivist thinking. These theories resemble Schmitt’s critique of legal positivism.

3.1 Legal positivism as common law constitutionalism

In American constitutional scholarship, positivism first exists as common law constitutionalism. For some theorists, U.S constitutionalism should be understood as a common law system, although the American constitution is a written one. This approach, they believe, offers a better understanding of American constitutional development and ensures the objectivity of constitutional interpretation.

James Stoner, a scholar in a political science department, for example, argues that the common law understanding of American constitutionalism is fully consistent with the original understanding of the Constitution. A faithful interpretation of the Constitution should follow common law precedents and values, which serve to ensure the objectivity of constitutional interpretation. For Stoner, a common law approach means that precedents govern the decision. When judges make decisions, they are to find norm-like guidance in common law precedents and principles. For Stoner, the common law should not be understood as ‘judge-made law’ or ‘judicial process’, because the ‘judge-made law’ or ‘judicial process’ understanding of common law is ‘dangerously disconnected from the values and norms of the communities it serves’. It shrouds ‘the common law’s original meaning and vitality’ and replaces ‘its spirited liberty with personal license’.34

Stoner’s position resembles what Schmitt called pure normativism; it is similar to Kelsen’ s pure theory of law. While Kelsen imagines a system of norms in which every norm is derived from a superior norm, Stoner’s common law theory imagines a system of precedents in which every precedent derives from a prior precedent. In American constitutionalism, this means that every precedent or doctrine could eventually be traced to an immemorial past, or to use Paul Brest words, ‘a remote ancestor who came over on the Mayflower’.35

David Strauss also provides a common law understanding of American constitutionalism. For Strauss, at the core of American constitutional tradition is ‘an approach derived from the common law and based on precedent and tradition.’ If one takes a close look at American constitutionalism, one will find the American constitutional system is ‘a common law system, one in which precedent and past practices are, in their own way, as important as the written American Constitution itself.’36

Strauss’ understanding of common law, however, is not exactly the same as Stoner’s. While the latter understands the common law to consist of changeless precedents and values, the former views the common law as a system that evolves. For Strauss, precedents are not only norms; they are also decisions. Common law judges do not only follow norms in their adjudication, they also make extra-norm decisions. They must do so to assure that precedents keep pace with time. This dual character of common law constitutionalism, Strauss argues, makes American constitutional development non-arbitrary. He writes, ‘a constitution […] is both living, adapting, and changing and, simultaneously, invincibly stable and impervious to human manipulation.’ It ‘is a “living” constitution, but it is also one that can protect fundamental principles against transient public opinion, and it is not one that judges (or anyone else) can simply manipulate to fit their own ideas.’37

Strauss’ common law constitutionalism, therefore, provides a positivist understanding of the Constitution in the form of combination thinking. Under Strauss’ theory, American constitutional development is a combination of making wise decisions and following common law norms. The decisions in common law adjudication reflect ‘the collective wisdom of other people who have tried to solve the same problem’.38 Those judicial decisions, in turn, become precedents providing norm-like guidance for future judges.

3.2 The Schmittian critique of common law thinking

Very much like Schmitt’s critique of legal positivism, there are also Schmittian constitutional scholars who criticize common-law imaginations of the Constitution. According to these scholars, a common law view of the Constitution brings no objectivity to the Constitution. Extra-norm decision is inevitable in common law constitutional interpretation.

To Stoner’s pure normativist imagination of common law constitutionalism, Robert Post provides a critique that resembles Schmitt’s critique of Kelsen. For Post, the pure normativist, or what Post calls ‘doctrinal’ understanding of American common law constitutionalism, could only be sustained if there were no disagreement over law or if there were consensus on the justice of the law. ‘But if there is disagreement about the justice of the law, or about its purposes, or about its effectiveness in achieving those purposes, then the balance can begin to tip away from the values of stability and predictability.’ At a certain point, ‘when dissatisfaction with the status quo reaches a sufficient magnitude, we can expect to see the doctrinal chain snapped’.39

The pure normativist understanding of common law constitutionalism, viewed from this perspective, imagines a system of norms with no disagreement. In concrete constitutional disagreement, all pure normativists can do is ask people to imagine the objectivity of common law constitutionalism. Doing so will not bring disagreeing parties to agreement, for they will imagine differently. The position of these common-law constitutionalists is the same as that of Kelsen who also asked people to imagine the gapless norm system, even as they disagreed.

To Strauss’ combination understanding of common law constitutionalism, scholars such as Jack Balkin respond that the combination approach fails to bring objectivity to the constitution. Strauss thinks ‘[t]he accumulated precedents are “the general bank and capital’’ that would ensure the non-arbitrariness of common law decisions’,40 but Balkin shows that common law precedents can never objectively or mechanically point to the so-called wisdom of the collective judges.

Strauss argues that common law precedents can provide guidance for judges because precedents are connected with ‘custom’ or ‘tradition’. Balkin responds that ‘the very idea of custom seems altogether too romantic and homogenous to describe a complicated modern society like the United States.’41 In concrete cases, there exist endless possible understandings of traditions or customs. There is simply no definite common law decision or wisdom that common law precedents can point to.

Balkin also argues that the common law could not objectively select the best decision or wisdom for judges, even were there a best decision among the precedents. Strauss thinks a market or ‘polling’ system of common law decisions exists: free competition among common law decisions ensures the survival of the best decisions. However, as Balkin points out, the judicial system is a hierarchy in which ‘[l]ower federal courts must follow the Supreme Court’.42 In the common law system, there is no free market or any other mechanics that would ensure the selection of the best precedent.

In fact, even Strauss himself occasionally admits that common law precedents cannot provide norm-like guidance for judges. Common law, according to Strauss, is ‘not algorithmic’ such that it could provide clear rules to distinguish different precedents and determine which should be overturned. ‘When … can a case be distinguished from an earlier precedent? What are the rules for deciding between conflicting precedents? What are the rules about overturning precedents?’ For these questions, Strauss admits that common law theory is unable to offer any answer.43

3.3 The Schmittian understanding of common law

Post and Balkin not only deny that common law thinking can bring objectivity to constitutional interpretation, they also criticize common law thinking for misunderstanding the nature of constitutional interpretation and constitutional adjudication.

The common law precedents, these scholars argue, do not have an objective status prior to their use in a decision. Common law theorists imagine the positive existence of precedents in arguing for the merits of stare decisis. Yet, as Post points out, the precedents are themselves part of constitutional interpretation. They do ‘not stand outside the processes of constitutional interpretation, like an axiom in a geometrical proof’.44 In a concrete case, a judge always has to decide whether to apply a precedent and what its application means. Only by affirming a previous decision does that decision become a precedent. That act of affirmation is unavoidably an act of interpretation.

Common law thinking, therefore, is an ‘ideology’. It is what Balkin calls ‘a mystification or disguise’ of concrete and actual legal activities.45 In concrete legal activities, there is simply no such thing as stare decisis, because the common law precedents are themselves the products of the very decisions that they allegedly regulate. In a concrete decision, a judge never follows a precedent. Rather, in a concrete decision, it is always a judge that decides and affirms a precedent. To borrow Schmitt’s words, in common law decisions, it is always judges who ‘draw up’ and ‘administer’ precedents.46

4 Schmitt/Positivism debate in America: Written law constitutionalism and its critique

4.1 Legal positivism as written law constitutionalism

In American constitutional scholarship, the second type of legal positivism, and perhaps the more dominant type, is the theory of a written constitution. Unlike common law constitutionalism, written constitutional theory understands or imagines the Constitution as a written text that consists of rules, principles and standards. Written constitutionalism considers the people, not judges, as the legitimate decider of the Constitution.

These constitutional theories fall into what Schmitt calls a combination understanding of the Constitution. Under these theories, the Constitution is imagined as a combination of the sovereign people’s decisions and a set of norms or norm-like principles that carry out the people’s decisions. On the one hand, the sovereign people’s decisions lay down the meaning or content of the Constitution. On the other hand, those decisions transform themselves into constitutional norms. The constitutional norms carry or point to the constitutional decisions of the people.

Typical of combination thinking about the Constitution is conservative originalism. Starting in the 1980s, conservative lawyers like Attorney General Edwin Meese argued for a jurisprudence that privileged original understandings of the Constitution.47 Later, the jurisprudence of originalism was refined and developed by prominent scholars and Supreme Court Justices like Robert Bork and Justice Antonia Scalia.48 These originalists, despite their great internal differences, all argued that the meaning of the Constitution is fixed at the time of its enactment. Unless the people make other constitutional decisions through the formal amendment process, judges and other constitutional interpreters are restrained by the constitutional decisions embodied in constitutional norms.

Other combination theorists disagree with conservative originalists on the character of constitutional decisions and the form of constitutional norms. Bruce Ackerman, for example, argues that the relevant constitutional decision is not necessarily made at the moment of enacting or amending the Constitution. For Ackerman, what matters is the constitutional moment, a moment when the people are highly mobilized and shows great commitment to certain values. In such constitutional moments, the sovereign people make constitutional decisions outside the written constitutional procedures. Constitutional norms, accordingly, do not necessarily exist as formal, textual provisions. They can also exist as informal constitutional norms or what Ackerman calls ‘higher law’ norms.49

Imagining the Constitution as a system of norms that carries forward the people’s decisions, combination theories consider themselves to be both normatively and descriptively superior to other theories. Normatively, combination theories think they can both ensure the legitimacy of constitutional enactment and bring objectivity to constitutional interpretation. Descriptively, combination theories think they can more accurately explain the course of real constitutional development in America.

4.2 The inevitability of extra-norm decisions

In response to the forms of combination thinking in recent constitutional theory, Balkin, Post and other scholars have developed powerful critiques. Very much like Schmitt’s own critique, these responses show combination thinking to be incapable of bringing objectivity to constitutional interpretation.

Balkin, for example, argues originalism can mean either original expected application originalism or original meaning originalism. The former concerns the expected intention of constitutional framers or ratifiers or what Schmitt call ‘the will of the legislator’.50 On this view, constitutional interpretation should follow the intentions of the framers or ratifiers. The latter concerns the semantic meaning of the Constitution or what Schmitt call ‘the will of the statute’. On this view, constitutional interpretation should follow the shared understanding of the Constitution at the time of its creation.

Even if one chooses one specific form of orginalism, Balkin argues, originalism would still require extra-norm decisions. Original expected application originalism cannot point to a definite state of mind, whether that of constitutional framers or ratifiers. It is extremely difficult to identify ‘the psychological states of particular historical actors – whether framers or ratifiers – because they may not have all shared the same mental states, because their intentions might be unknowable, and because they may have had no intentions about states of affairs that did not or could not obtain when they lived.’51 Citing H Jefferson Powell’s work, Balkin also points out that the framers themselves may have thought their intentions would be an inappropriate ground for constitutional interpretation.52 They may have believed that ‘purpose and intention should be derived from the public words of the text’.53

Similarly, original meaning originalism points to no pre-determined or pre-fixed decision. If original meaning originalism relies only on the semantic meaning of the Constitution then ‘fidelity to original meaning does not require following what the framing generation thought the consequence of adopting the words would be.’54 In that case, original meaning originalism would become what Schmitt call pure normativism. As Balkin puts it, ‘[t]he logical consequence of moving from original intention and original understanding to original meaning – or at least the version I offer here – is that original meaning originalism becomes a form of living constitutionalism’.55 There would be no objective meaning in a constitutional norm in either case.

In fact, Balkin argues that conservative originalism not only adds no objectivity to constitutional interpretation, it cannot even remain consistent when applied. Conservative originalism, Balkin argues, often conflates original meaning originalism and original expected applications. Although many conservative originalists admit originalism means original meaning, not the original intention and original understanding, they ‘often view original expected applications as very strong evidence of original meaning, even (or perhaps especially) when the text points to abstract principles or standards’.56 In real life constitutional interpretation, ‘even though conservative originalists may distinguish between the ideas of original meaning and original expected applications in theory, they often conflate them in practice’.57

Worse still, American conservative originalists also continually make exceptions when applying the method of originalism. As Balkin points out, there is a large gap between contemporary constitutional practice and ‘constitutional principles derived from original expected applications’.58 If conservative originalists insist on applying the method of originalism, particularly original expected application originalism, it would mean cases such as West Coast Hotel Co v Parrish and Brown v Board of Education of Topeka would be overruled. Originalists, therefore, argue that many cases decided during New Deal and Brown period are ‘precedents and constructions […] settled and beyond dispute.’59 Constitutional interpretation should follow the doctrines in these cases, not the original understanding or intention of the Constitution.

Conservative originalists, therefore, shift between (different versions of) originalism, stare decisis, and other means to acquire the political results they want. Citing Randy Barnett, Balkin mocks originalism’s method of constitutional interpretation as inherently result-oriented. ‘Where originalism gives him the results he wants, he can embrace originalism. Where it does not, he can embrace precedent that will. Where friendly precedent is unavailing, he can assert the nonjusticiability of clauses [like the Ninth Amendment] that yield results to which he is opposed.’60

Balkin and other constitutional theorists’ criticism of originalist thinking again echoes Schmitt’s critique of combination thinking.61 Viewing the combination theory as lacking ‘the intrinsic consistency of a specific mode of thought’,62 Schmitt criticizes combination theory for shifting between decisionist thinking and norm thinking. Combination thinking, Schmitt argues, is a theory that ‘permits positivism to be sometimes decisionist and sometimes normativist in order to satisfy the sole authoritative positivist requirement for certainty and calculability.’63

4.3 The inadequacy of combination theory

For Schmittian constitutional scholars, combination thinking about the Constitution not only brings no objectivity to the Constitution and fails as a normative theory; it also fails descriptively to explain American constitutional development. Combination theory understands American constitutional development as consisting of two forms of politics. In constitutional moments, the sovereign people make constitutional decisions that lead to enactment or amendment of the Constitution, written or unwritten. In normal politics, the people exist as citizens operating under the governance of constitutional norms. However, the Schmitt-like scholarship shows that there is always a sovereign American people that stands above the Constitution and decides upon the constitutional norms.

Balkin, for example, argues that ‘[t]he people’s constitution-making power never really goes away’ in actual constitutional practice.64 Conservative originalism or other combination thinking argues that formal constitutional amendment ‘is the beginning and the end of the people’s participation in constitution making’, but the reality is that the people continuously exert their constitution-making power to influence and change the meaning of the Constitution.65 In American constitutional development, ‘the constitutional framework is open-ended, people with different political views can make good-faith claims for interpreting it and building on it consistent with their competing constitutional and political visions without having to argue for amending the Constitution.’66

In what Balkin and Sandy Levinson call ‘Partisan Entrenchment’, for example, the people can legitimately influence the meaning of the Constitution by electing a President and legislators with the same party ideology. Doing so, the people can pack the Court with members who share that party’s ideology. During the New Deal period, for example, the people repeatedly elected Franklin Roosevelt and Roosevelt finally changed the constitution’s interpretation by appointing new Justices.67

Post and Siegel make a similar claim in their studies. Post shows how ordinary people participate in constitutional interpretation. As part of the people, ordinary citizens participate in social movements to influence the society’s constitutional culture or general attitudes towards certain constitution issues, thereby influencing constitutional law or the Court’s formal interpretation of the Constitution.68 As Post puts it, the ‘[c]ourt in fact commonly constructs constitutional law in the context of an ongoing dialogue with culture, so that culture is inevitably (and properly) incorporated into the warp and woof of constitutional law’.69

Reva Siegel adds a case study on how a social movement changes the meaning of the Fourteenth Amendment. According to Siegel, although the Equal Rights Amendments, which was designed to guarantee equal rights for women, failed as a formal amendment to the American constitution, the people managed to reinterpret the Fourteenth Amendment to protect women from sex discrimination. The social movement changed the dominant will of the people and subsequently changed the attitude of the judges on the issue of women’s equal rights, bringing about what Siegel calls the ‘de-facto Equal Rights Amendment’.70

The analyses of constitutional practice by Balkin, Post and Siegel show the inadequacy of combination theory; they confirm the insights of Schmitt’s theory. As American constitutional practice shows, the people always exist and are always the legitimate decider; they are what Schmitt calls the ‘sovereign dictator’ of constitutional norms.71 The people can always legitimately assert their constitutional-law making power to decide the validity and meaning of constitutional norms or provisions, including deciding for ‘the exception’ to certain constitutional norms.72

5 Conclusion

This analysis of the pathologies of positivist understandings of American constitutionalism reveals the need to rethink the character of constitutionalism. To make the concept of constitutionalism meaningful as the legitimate foundation of politics, the Constitution should be reimagined. It should, as Schmitt’s legal theory shows, be imagined as the will of the people.73 Constitutional interpretation, accordingly, should be redefined or reimagined as an activity of representing the people’s will, rather than interpreting and following constitutional norms.

Some American constitutional scholars have developed theories that are very close to this understanding. Post, for example, argues that constitutional interpretation should adopt a method of responsive interpretation or non-interpretivism, which can roughly be defined as seeking ‘the principal stuff of constitutional judgment in one’s rendition of society’s fundamental values rather than in the document’s broader themes.’74 For Post, this method of constitutional interpretation is more sincere and candid because it is simply inevitable. The Constitution itself is a product of the activity of constitutional interpretation. It cannot exist as an independent fact waiting to be interpreted. Therefore, Post argues that the persuasiveness of constitutional interpretation can only be derived from its capability of determining ‘which aspects of our contemporary ethos may be regarded as legitimate’.75

Alexander Bickel makes a similar claim. In his pioneering study of the ‘counter-majoritarian difficulty’, he argues that the legitimacy of constitutional interpretation should be based on its ability to discover ‘values [the American people] hold to have more general and permanent interest’.76 For Bickel, the courts, especially the Supreme Court, should serve as the vanguard of the people and lead public opinion. Constitutional review should base its legitimacy on its capability of representing the people in the near future, although it may ‘thwart the will of representatives of the actual people of the here and now’.77

All these theorists imagine the Constitution as more than simple norms; they imagine constitutional interpretation as more than norm following. Yet they are all only faint-hearted Schmittian theorists, refusing to fully embrace the view that norms are only a part of the Constitution.78 Post, for example, still occasionally talks about a law and politics distinction. He still imagines law as ‘the shared norms’ that politics produces and argues that law can ‘stabilize and entrench the shared values that politics strives to achieve’.79 Post, therefore, does not entirely give up thinking of law as norm.80 He instinctively falls back on that form of legal positivism characteristic combination thinking.

Balkin is even more typical. Although we have seen that Balkin’s constitutional theory highly resembles Schmitt’s theory, Balkin still cannot help but imagine the Constitution as a text that consists of constitutional norms. In his book Living Originalism, after criticizing the inherent inconsistency of conservative originalism, Balkin argues that the Constitution has two kinds of norms: rules and principles. Constitutional rules, Balkin argues, should be understood or imagined as norms that carry the determinate will of the people. Inherently vague constitutional principles should be understood or imagined as pure norms, because the people deliberatively chose this language to paper over disagreements among themselves. There is no determinate decision of the people in these cases.

All these faint-hearted Schmittian theorists face great difficulties. Whenever they adopt norm thinking, their theories will become inconsistent with their fundamental, critical insights. Take Balkin’s interpretive theory for example. If there is no determinate interpretive method, as Balkin has admitted, then debating about the meaning of constitutional principles is like debating about the non-existent new clothes in Anderson’s fairy tale Emperor’s New clothing. Both are meaningless for concrete life.81 It is much more sincere and meaningful if constitutional interpretation looks directly at American concrete life and seeks the ethos of American people.82

Balkin has similar problems when he turns from principles to rules. There is no legitimate foundation for his claim that constitutional rules must be applied strictly ‘because that is what the text offers us’.83 If the people’s will changes or if a constitutional rule is no longer fit to realize the people’s will, the meaning and the validity of rule will inevitably change. In concrete life, the people can always make exceptions to constitutional rules, whether in the name of constitutional principle,84 constitutional revolution,85 emergency86 or reasonableness.87 It is always the people’s will, not the constitutional text, that grounds a decision.

Viewed from this perspective, we can draw a final conclusion: American constitutionalism can only be understood by a fully Schmittian theory of law. Whenever constitutional theories abandon norm thinking and view the Constitution as the people’s will, as we have seen in Balkin, Post and Siegel’s criticism of originalism, these theories become theoretically consistent and insightful. Whenever constitutional theories try retain norm thinking, they face serious challenge. Schmitt’s theory should not, therefore, be viewed as the enemy of law or of the Constitution. Rather, Schmitt’s theory is a re-imagination or reinvention of law and the Constitution. It brings back a meaningful concept of law and Constitution.

Acknowledgements

I would like to thank Paul Kahn, Paul Gewirtz, Jack Balkin, Robert Post, Dieter Grimm, David Grewal, Philip C C Huang, Zhang Taisu, Larry Catá Backer, Feng Xiang, Jiang Shigong and Zhang Yongle for reading the manuscript and providing helpful comments.

Footnotes

1

John Adams, ‘Novanglus Papers in Charles Francis Adams (ed), The Works of John Adams (Ams Pr Inc, vol 4, 1851) 106.

2

Richard H Fallon, ‘“The Rule of Law” as a Concept in Constitutional Discourse’ (1997) 97 Colum L Rev 1. (‘Any account [of the rule of law] should begin with familiar contrast between “the Rule of Law” and “the rule of men” [sic].’).

3

For a thick description of the ideal of rule of law, see generally Paul Kahn, The Reign of Law: Marbury V. Madison and the Construction of America (Yale University Press 1997); Paul Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (University of Chicago Press 1999); Paul Kahn, Law and Love: The Trials of King Lear (Yale University Press 2000); Paul Kahn, ‘Comparative Constitutionalism in a New Key’ (2003) 101 MichLRev 2677.

4

See Fallon (n 2) (‘The law and its meaning’ are ‘fixed and publicly known in advance of application’).

5

As Jeremy Waldron puts it: The rule of law ‘promotes a social environment in which individuals know where they stand and what they can count on […] Whatever substantive ends are being pursued, if they are pursued through law, they define a predictable space in which individuals can plan and act freely’. See Jeremy Waldron, ‘Why Law – Efficacy, Freedom, or Fidelity?’ (1994) 13 L Philos 259 (266).

6

Many legal theorists, therefore, view men’s will as undetermined and unpredictable. See eg Herbert Wechsler, ‘Toward Neutral Principles of Constitutional Law’ (1959) 73 Harv L Rev 1.

7

Carl Schmitt, Constitutional Theory (Jeffrey Seitzer tr, Duke University Press 2008) 93.

8

Carl Schmitt, Der Wert des Staates und die Bedeutung des Einzelnen (1914) 79, Cited in John P McCormick, Carl Schmitt’s Critique of Liberalism: Against Politics as Technology (Cambridge University Press 1997) 220.

9

See Carl Schmitt, Political Theology, Four Chapters on the Concept of Sovereignty (George Schwab tr, University of Chicago Press 2005) 15.

10

As Joseph Singer said, ‘we are all legal realists now’. See Joseph William Singer, ‘Legal Realism Now’ (1988) 76 Cal L Rev 467. See also Richard A Posner, ‘The Decline of Law as an Autonomous Discipline: 1962–1987’ (1987) 100 HarvLRev 761.

11

DA Jeremy Telman, ‘A Path Not Taken: Hans Kelsen’s Pure Theory of Law in the Land of Legal Realists’ in Robert Walter, Clemens Jabloner and Klaus Zeleny (eds), Hans Kelsen Anderswo/Hans Kelsen Abroad (Manz 2010) 353.

12

William Scheuerman, Carl Schmitt: The End of Law (Rowman & Littlefield Publishers 1999).

13

ibid 80.

14

Oliver Wendell Holmes, ‘Law and the Court’, in The Mind and Faith of Justice Holmes: His Speeches, Essays, Letters and Judicial Opinions (Little, Brown and Company 1943) 389. For Schmitt’s definition of liberalism, see generally Carlo Galli, ‘The Critique of Liberalism: Carl Schmitt’s Antiliberalism: Its Theoretical and Historical Sources and Its Philosophical and Political Meaning’ (2000) 21 Cardozo L Rev 1597.

15

Whether law can be separated from morality is the core issue of Hart-Dworkin debate. See generally HLA Hart, The Concept of Law (Clarendon 1961); Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1978); Ronald Dworkin, Law’s Empire (Harvard University Press 1986).

16

Carl Schmitt, On the Three Types of Juristic Thought (Joseph W Bendersky tr, Praeger Publishers 2004) (1934) 49.

17

For Kelsen’s pure theory of law, see generally Hans Kelsen, Pure Theory of Law (Max Knight tr, University of California Press 1967).

18

Schmitt (n 16) 49.

19

ibid 66.

20

See generally John Austin, The Province of Jurisprudence Determined (Cambridge University Press 1995); Jeremy Bentham, Of Law in General (The Athlone Press 1970).

21

Schmitt (n 16) 52.

22

Schmitt, Law and Judgment, cited in Scheuerman (n 12) 20.

23

Pure nomativism, as I already argued, provides no objectivity to concrete life. It makes law objective at the expense of making law irrelevant in concrete life.

24

Schmitt, Law and Judgment, cited in Scheuerman (n 12) 20.

25

Schmitt (n 16) 68.

26

Here we may recall H L A Hart’s theory of the rule of recognition. Hart, in answering the question ‘What is law?’ develops a theory of distinguishing between primary rules and secondary rules. According to Hart, the rule of recognition, a secondary rule, distinguishes primary law, such as criminal law, from customs, commands, and other social acts. By introducing rules of recognition, Hart believes that his theory provides a more accurate account of ‘what is law’ than Austin. It could provide a better ‘master rule’ for distinguishing law from non-law. For example, a command of a gunman in a bank may be considered as law under Austin’s theory, but would not be considered so under Hart’s theory. See generally Hart (n 15).

27

Carl Schmitt, The Plight of European Jurisprudence, GL (Télos 1990), 46.

28

Carl Schmitt, Über die drei Arten des rechtswissenschaftlichen Denkens 14 (1934), cited in Mika Ojakanga, A Philosophy of Concrete Life, Carl Schmitt and the Political Thought of Late Modernity (2004) 39.

29

Schmitt (n 16) 48.

30

Schmitt (n 27) 46.

31

As Schmitt writes, ‘the exception is more interesting than the rule. The rule proves nothing; the exception proves everything: It confirms not only the rule but also its existence, which derives only from the exception.’ See Schmitt (n 13) 15.

32

This is why the ‘sanction theory of law’ could never be fully banished from jurisprudential studies. On the sanction theory of law see generally Austin (n 20); Matthew H Kramer, In Defense of Legal Positivism: Law Without Trimmings (Oxford University Press 1999) 84–89; Danny Priel, ‘Sanction and Obligation in Hart’s Theory of Law’ (2008) 21 Ratio Juris 404; Ekow N Yankah, ‘The Force of Law: The Role of Coercion in Legal Norms’ (2008) 42 URichLRev 1195 (2008); Frederick Schauer, ‘Was Austin Right After All? On the Role of Sanctions in a Theory of Law’ (2010) 23 Ratio Juris 1; Frederick Schauer, ‘The Best Laid Plans’, 120 Yale LJ 586, 616.

33

Compare Jed Rubenfeld’s theory of constitution as commitment. Rubenfeld argues that the U.S. Constitution should be viewed as a written commitment of American people. ‘Self-government is achieved by committing oneself to certain ends and holding oneself to those commitments over time. Human freedom is the freedom to write: to give one’s life a text’. See Jed Rubenfeld, ‘Reading the Constitution as Spoken’ (1995) 104 Yale LJ 1119. Although there are certain similarities between the current article and Rubenfeld’s theory, the difference is no less significant. While Rubenfeld suggests that the US Constitution should be understood as a text embodying the people’s commitment, this article argues that Schmitt’s legal and constitutional theory view law and constitution as a reflection of the people’s commitment that needs to be taken care of.

34

See James R Stoner, Common Law Liberty: Rethinking American Constitutionalism (University Press of Kansas 2003), Preface.

35

Paul Brest, ‘The Misconceived Quest for the Original Understanding’ (1980) 60 BUL Rev 234.

36

David A Strauss, The Living Constitution (2010) 3.

37

ibid 10.

38

ibid 38.

39

Robert Post, ‘Theories of Constitutional Representation’ 30 Representations 13, 27.

40

Strauss (n 36) 41.

41

Jack M Balkin, ‘The Roots of the Living Constitution’ (2012) 92 BUL Rev 1129 (1140).

42

ibid 1139.

43

Strauss (n 36) 40.

44

Post (n 39).

45

Balkin (n 41) 1138.

46

Carl Schmitt, The Concept of the Political (George Schwab tr, University of Chicago Press 2007) 67.

47

See General Edwin Meese III, ‘Address before the American Bar Association’ (9 July 1985), in Paul G Cassel (ed), The Great Debate: Interpreting Our Written Constitution (The Federalist Society 1986).

48

See generally Robert Bork, The Tempting of America: The Political Seduction of the Law (1990); Antonia Scalia, A Matter of Interpretation: Federal Courts and the Law, (Amy Gutmann ed, 1997).

49

For American unwritten constitutional theories, see Thomas C. Grey, ‘Do We Have an Unwritten Constitution?’ (1975) 27 StanLRev 703; Thomas C Grey, ‘Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought’ (1978) 30 StanLRev 5; Suzanna Sherry, ‘The Founders’ Unwritten Constitution’ (1987) 54 UChiLRev 1127; Michael Moore, ‘Do We Have an Unwritten Constitution’ (1989) 63 SCalLRev 107; Laurence H Tribe, The Invisible Constitution (2008). For Bruce Ackerman’s theory of higher law, see generally Bruce Ackerman, We the People: Foundations (Harvard University Press 1990).

50

Galli (n 14).

51

Jack M Balkin, Living Originalism (Harvard University Press 2011) 120.

52

For Powell’s argument, see H Jefferson Powell, ‘The Original Understanding of Original Intent’ (1985) 98 HarvLRev 885 (‘The original intention of framers, on the one hand, is essentially undemocratic. Besides, the framers intentionally keeps their debate at the Federal Convention secrete, therefore may not want later constitutional interpreters to apply their original intention of the Constitution’).

53

Balkin (n 51) 120.

54

ibid 104.

55

ibid.

56

ibid.

57

ibid.

58

ibid 110.

59

ibid.

60

ibid 111.

61

Besides Balkin, there are also many other constitutional theorists who criticize originalism. See eg, Stephen R Munzer and James W Nickel, ‘Does the Constitution Mean What It Always Meant?’ (1977) 77 ColumLRev 1029; Grant S Nelson and Robert J Pushaw, ‘Rethinking the Commerce Clause: Applying First Principles to Uphold Federal Commercial Regulations but Preserve State Control Over Social Issues’ (1999) 85 Iowa LRev 1; Peter J Smith, ‘Sources of Federalism: An Empirical Analysis of the Court’s Quest for Original Meaning’ (2004) 52 UCLA LRev 217.

62

Schmitt (n 16) 68.

63

ibid.

64

Balkin (n 51) 113.

65

ibid.

66

ibid.

67

For a detailed discussion of how ‘partisan entrenchment’ in the judiciary leads to constitutional change, see Jack M Balkin and Sanford Levinson, ‘The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State’ (2006) 75 FordhamLRev 489.

68

Robert C Post, ‘Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law’ (2003) 117 HarvLRev 4.

69

ibid 8.

70

Reva B Siegel, ‘Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de facto ERA’ (2006) 94 CalLRev 1323.

71

Schmitt (n 9) 109.

72

As Schmitt writes, ‘The constitution is inviolable. Constitutional laws, by contrast, can be suspended during the state of exception and be violated by measures of the state of exception.’ See ibid 80.

73

See generally Schmitt (n 9).

74

Post (n 39) 31.

75

ibid 32.

76

Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Yale University Press 1962) 20.

77

ibid 16–17.

78

None of these theories, for example, fully embrace Schmitt’s theory of the exception.

79

Robert Post, ‘Theorizing Disagreement: Reconceiving the Relationship between Law and Politics’ (2010) 98 CalLRev 1319.

80

Post, however, is more willing to de-emphasize law/politics distinction and embraces judicial statesmanship when it comes to the problem of legal interpretation. As he writes, ‘the virtue of technical legal craft, which exemplifies the ideal of a formally autonomous law, can appropriately be joined to the virtue of judicial statesmanship, which exemplifies the ideal of politically responsive law’. See ibid.

81

Pure norm system and the emperor’s non-existent new clothes would become meaningful only if they are intended to be ‘noble lies’ to deceive people. The liberal idea of rule of law, therefore, could only be justified as a ‘noble lie’. For ‘noble lie’, see Plato, The Republic (Desmond Lee 1987) 414b–415d.

82

To some extent, the ethos I argued here resembles Robert Cover’s nomos. The method of constitutional interpretation resembles Philip Bobbitt’s ‘ethical’ method of constitutional interpretation, which justifies constitutional interpretation based on the ethos of the constitution. The difference between my argument and Philip Bobbitt’s method is that I argue constitutional interpretation should look directly at American concrete life and seek the ethos of American people, rather than seeking ethos in the text of the American constitution. For Cover’s definition of nomos, see Robert Cover, ‘The Supreme Court 1982 term Foreword: Nomos and Narrative’ (1983) 97 HarvLRev 4. For Bobbitt’s ‘ethical’ method of constitutional interpretation, see Philip Bobbitt, Constitutional Fate (1982) 93–119.

83

Balkin (n 51) 6.

84

Dworkin, for example, argues that theoretical arguments is an integrate part of law and constitution. Dworkin’s theory, in a sense, could be employed to justify the break of constitutional rules under the name of constitutional principle. See generally Dworkin (n 2).

85

Ackerman, for example, argues the people break constitutional rules in constitutional revolution or what he calls the ‘higher-law making’ moment. See generally Ackerman (n 49).

86

Clinton Rossiter, for example, defends Abraham Lincoln and Franklin D Roosevelt’s break of constitutional rules under the emergency. See generally Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton University Press 1948).

87

For example, although American constitution only authorizes the president to be ‘Commander in Chief of the Army and Navy of the United States and of the militia of the several States’, virtually nobody argues that the president is not the Commander in Chief of the Air Force.

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