Two Constitutions in Tension

Vinicius Pintas Marinho, Universidade Federal do Rio de Janeiro

Abstract

Contemporary American constitutionalism’s scholarship tends to primarily observe the constitutional phenomenon from a critical perspective. However, orphan and heir of the influence exerted by critical studies in the seventies and eighties, it seems that American contemporary constitutionalism lacks a common ground, reasonably homogeneous, that could underlie most of its prominent theories. The diversity of constitutional sources can offer hints on how the constitutional debate became a movement of theoretical dispersal. American constitutionalism faces delicate and decisive days. If, on one hand, judicial review’s debate has gotten partially drained, on other, the current institutional crisis seems to demand a steady attention’s growth from the scholarship. Obviously, there is just one American Constitution, although it has two dimensions. In this article I analyze how this dichotomy implicates in constitutional tensions and fickleness. These conflicts are possible because the written and the unwritten constitutions provide diverse theoretical approaches to the same dilemmas on the constitutional catalogue (the political system, the civil rights, constitutional legitimacy, legal certainty and constitutional stability, legal regulation, constitutional design, judicial review, etc).

Some issues joined together in this constitutionalism converge to the fact that we are dealing with a system which carries two philosophically profound features that flow in opposite directions. It seems that the American constitutional debate’s most influential opinion-makers employ this dichotomy, which is composed by the Common Law Constitution and written Constitution, in order to outline their theories and doctrines. They may find space for almost anything. On one hand, we have precedents, tradition, customs, common sense, and fairness; on the other hand, stability, safety, tolerance, national union, positive canons, modern democracy, and interpretation.

The foremost characteristics of these different dimensions of the Constitution, under the perspective of its influence on the progress and function of the most relevant contemporary theories debated in the Supreme Court and by law professors is the central issue. This brief study will enable further comparisons of this system with the other constitutionalisms.