Abstract

A truly inclusive democratic politics must be understandable, or cognitively tractable, for ordinary people busy with the rest of their lives. This extends not only to everyday politics and policy, but to constitutional politics as well—non-specialist democratic citizens should be able to grasp the fundamental law that governs them and imagine their own role in shaping it as political agents. Yet these requirements raise a difficulty: in many countries, including the United States, constitutions are treated as the exclusive domain of lawyers and judges. As a result, constitutional matters are typically discussed using legalistic jargon that is inscrutable even to non-specialist lawyers, let alone ordinary citizens. How then can constitutional politics be made legible to ordinary citizens? In this essay, I argue this challenge is partly one of political ideas—specifically, the ideas ordinary citizens use to think about their constitutions, or their folk constitutionalism. This may sound strange because insofar as constitutions are treated as lawyers’ exclusive turf, the problem may seem to be one of practice, not merely ideas. But popular practices of what scholars like John Finn and Elizabeth Beaumont call popular or civic constitutionalism involve citizens and social movements in transforming constitutions. These transformations often occur behind the backs of everyone involved, as new frames and understandings come to gradually transmute constitutional meaning, which in turn pervades the public political culture and reshapes the public’s constitutional imagination. I suggest we need ideas that more closely reflect what democratic citizens already do in democratic constitutional politics, so that they can do it more self-consciously and dispel the impression of an anti-democratic lack of control that recent constitutional innovations reveal to be illusory. I explore the utility of ideas of unwrittenness and functional multi-textuality to the end of a folk constitutionalism appropriate for democracy.