Alexander Tsesis

91 Texas L. Rev. 1609

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In this Article, Professor Tsesis argues that the central purpose of U.S. constitutional governance is the protection of individual rights for the common good.  Members of all three branches of government must fulfill that public trust through just policies and actions.  The maxim of constitutional governance establishes a stable foundation for the rule of law, requiring government to function in a nonarbitrary manner.  It provides the people with consistency and predictability about the scope of governmental powers and responsibilities.

The foundational dictate of governance is incorporated into the U.S. constitutional tradition through the Declaration of Independence and the Preamble to the Constitution.  Those two documents reflect the national commitment to promulgating laws that are conducive to both the public good and the personal pursuit of happiness.  The federal legal system must integrate protections of rights for the common good into statutes, regulations, and judicial opinions that address a plethora of social demands and problems.

The project of maxim constitutionalism runs counter to positivist skepticism about the validity of fundamental constitutional principles.  This Article seeks to demonstrate that maxim constitutionalism reflects the normative underpinning of legal order that is compatible with pluralistic self-governance.  The protection of rights for the common good facilitates the workings of a polity that tolerates debate and deliberation.  The administration of laws for the public benefit enjoins tyrannical majoritarianism and abuse of state authority.

Like originalism, maxim constitutionalism utilizes historical analysis.  But it departs from originalism by denying that the original meaning of the Constitution’s text should be determinative.  Maxim constitutionalism is a binding norm that is independent of any individual mind frame, whether past or present.  In addition, though the forward progress of constitutionalism is informed by judicial opinions, it is not defined by them alone.  Congress must also play a central role in identifying rights and promulgating statutes for their protection.  Recognizing this bedrock purpose of governance distinguishes maxim constitutionalism from prominent strands of living constitutionalism by furnishing an objective and enduring standard for evaluating the legitimacy of governmental actions.  The assessment of public conduct is not procedurally neutral but substantively rich in its account of how governmental actors should further the public good through a legal system designed to secure life, liberty, and the pursuit of happiness for an equal citizenry.