Fundamental Law, Fundamental Rights, and Constitutional Time


  • David McNamee



This Article lays the groundwork for a novel theory giving citizens pride of place in constitutional interpretation—as voters and jurors, deliberators and disobedients, and more. My account adopts different answers to two basic questions that divide it from other prevailing theories: first, that citizens, rather than judges, shoulder primary responsibility for interpreting principles of fundamental law; and second, that fidelity to their Constitution requires, above all, keeping faith with their fellow citizens across constitutional time. This approach conceives of the Citizens’ Constitution as an enduring social contract. In setting the stage for this account, I advance several related claims that carry independent weight as theoretical contributions. First, the Citizens’ Constitution as Fundamental Law is a distinct and vitally important domain of constitutional principles, which are accessible and justifiable to citizens’ common reason, and which ground their pervasive disagreements. Second, propositions of fundamental law can be understood in another register—as propositions about constitutional time, relating the constitutional present to its past and future. Third, these propositions about constitutional time are moral arguments of a certain kind: arguments about constitutional justice, about what we share as citizens and
participants in an enduring enterprise and what makes the Constitution worthy of our allegiance. Finally, together these claims point the way to a recognitional account of fundamental rights that deepens their connection to constitutional justice, even as it generates a measure of commonality across pitched value disagreements.