With or without written constitutions, all nations have constitutive commitments, some codified in some form, others just widely understood as such. Randy Barnett asks, rightly, the sense in which these are “commitments” and “constitutive.” They’re commitments in the sense that they’re taken (politically, that is) to be binding, and not to be subject to change with the political winds. The United States is firmly committed to some kind of social security program, in a way that it’s not committed to particular appropriations, or the Toxic Substances Control Act, or Head Start, or Americorps, or the Superfund statute. These commitments are “constitutive” in the sense that they help define, and hence constitute, the nation’s self-understandings. The self-understanding of the United States would not allow it to accept a proposal to nationalize the automobile industry or to repeal the laws forbidding racial discrimination by private employers. (If you don’t like these examples, choose your own; there are many other possibilities)
The idea of constitutive commitments doesn’t serve an argumentative purpose, so far as I can tell, but it might help illuminate a nation’s political and even legal culture as it changes over time. It might also help clarify what particular debates are really about. In 1970, the Aid to Families With Dependent Children (AFDC) program lacked constitutional status, but it was a constitutive commitment, and some judicial decisions appeared to be influenced by that fact (the decisions involved statutory interpretation, not constitutional law). By 1990, the AFDC program was a mere policy. Changes in the other direction are also common; the Americans With Disabilities Act has probably moved, in a short time, into the category of the constitutive commitment (not its particular provisions, but the general idea).
FDR wanted the Second Bill of Rights to stand as a constitutive commitment. While it would be wrong to say he failed, he didn’t really succeed. The nation is committed, at least in principle, to some of the rights he listed (eg the right to free from domination by monopolies) but not to others (including my least favorite, the farmers’ rights provision, which fits uneasily with the right to be free from domination by monopolies),
Thanks much to Eugene for the forum, and to emailers for the many excellent comments, criticisms, and suggestions; I’ve learned a lot.
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