Constitutionalism and Coercion

A common understanding of constitutionalism sees a constitution as a device for keeping self-serving, corrupt, misguided, incompetent, power-hungry, or otherwise bad officials from doing bad things. But an alternative vision of constitutionalism recognizes the role of a constitution in imposing second-order constraints on the well-intended and often wise policies and decisions of even good officials, and doing so in the service of a range of longer-term values often likely to be slighted given the incentives of day-to-day politics and policy making. Using a series of prominent Supreme Court cases as a springboard, this Article, the written version of the Clough Distinguished Lecture in Jurisprudence at Boston College Law School, develops this alternative vision of constitutionalism and the role of a constitution. The Article then suggests that such a role for a constitution is especially in need of strong devices for coercive enforcement of constitutional constraints, stronger than those commonly in place in the United States today.