Title: The Significance of the Frontier in American Constitutional Law
Abstract: In his 1893 paper, “The Significance of the Frontier in American History,” Frederick Jackson Turner argued that, in order to understand why a democratic political culture flourished in the United States, the nation’s settlement of the West must be placed in the historical foreground. Among U.S. historians, it is virtually impossible to overstate the influence of Turner’s article.
In a book published more than 115 years later, Professor Davis Strauss set forth what has quickly become the leading account of living constitutionalism. Strauss’s book, which is a distillation of his major scholarly contributions from the preceding fifteen years, emphasizes the role that tradition and precedent play in constitutional adjudication, and likens constitutional decisionmaking to the common law method of judging. However, if judges internalized Strauss’s excessively backward-looking conception of adjudication, it seems doubtful that they would actually issue opinions that bring legally subordinated groups into the constitutional fold. Professor Strauss’s version of living constitutionalism, in other words, risks draining the very life from living constitutionalism.
This Article begins the process of reviving a more robust conception of the living Constitution by providing a detailed critique of Strauss’s framework and its attendant frailties. This historically-grounded critique emphasizes particular instances in which Supreme Court Justices have placed themselves at the frontier of constitutional law; that is, when the Justices decide to back away from precedents, and move the law in a new direction in order to embrace new understandings. This Article does not endeavor to articulate a unified theory of living constitutionalism. Yet in underscoring the significance of the constitutional frontier to America’s expanding conception of democracy, the Article nevertheless attempts to supply an indispensable element for any compelling theory of living constitutionalism, an element that the dominant conception mistakenly disregards. Contrary to a central pillar of Strauss’s theory, judges typically have not stumbled away from the precedents that they and their predecessors have built up over time without realizing they are doing so. Rather, judges must generally make affirmative choices to distance themselves from the framework of prior judicial decisions before setting out in a fresh jurisprudential direction, venturing in to uncharted judicial territory. Judges on the constitutional frontier by no means necessarily depart from precedent knowing a particular doctrinal destination in advance; judges do realize, though, that they have departed from the established order.
Publication Year: 2012
Publication Date: 2012-01-01
Language: en
Type: article
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