Why Have a Constitution--An Introduction to Tushnet's Take

After our discussion of the first month of the Trump administration and constitutional law, we return to our exploration of constitutional theory—this time turning away from theories of interpretation to theories about constitutional foundations: What’s the best story about why people adopt constitutions? This episode begins to examine stories that say that constitutions are good ways—maybe the only way—to work out how to peacefully resolve their disagreements about what ought to be done through what we call ordinary politics. We look at some reasons for (and against) entrenching the “rules about ruling”—and expose some disagreements about constitutional foundations that we’ll get into in later episodes.