Ameliorative Constitutionalism

The basic problem of American constitutional theory is that (a) the U.S. Constitution, morally speaking, lacks full democratic legitimacy due to the continuing effects of its unjust and undemocratic history, yet (b) we have no realistic chance in the foreseeable future of replacing it with something free from those legacies of exclusion and oppression. This Essay draws from philosophy and political science to sketch a way forward. From philosophy comes a methodological tool that argues backwards from something that we need (or want) to be true, to the constraints on the cognitions we must have to make that aspiration (here, constitutional legitimacy) possible. From political science comes the idea that a key function of constitutions, including our own, is to create the conditions for a sustainable shared life across lines of social conflict. But to serve this function, a constitution must protect the most important interests and be compatible with the political agency of all who live together under it, such that each social group has good reasons to adhere to the law and participate in constitutional methods of social change rather than risk conflict to improve their conditions. Bringing these two ideas together while understanding that the U.S. Constitution is susceptible to numerous possible interpretations suggests a strategy for bootstrapping it into legitimate democratic authority: when applying it, we should rely on only those interpretive resources consistent with the idea that it protects the basic interests and is compatible with the political agency of all who live under it. This approach, when applied to the use of the past, counsels us not just to permit but to prefer subaltern histories as a resource in constitutional interpretation. Such histories, together with the advocacy of those in present-day social movements who continue the legacies of the social movements for inclusion of the past, are our best evidence for what would protect the basic interests and express the political agency of those who are excluded by dominant-group doctrine and history. In short, the Constitution can oblige us to live under the government it creates only if we read it from below.