7 - ‘A Certain Shadowy Totality’

Summary

Constitutional law features prominently in the political culture of the United States, but there exists no sustained and robust tradition of theorising the material constitution of the polity. Most contemporary constitutional theorists remain committed to what Du Bois referred to as ‘constitutional metaphysics’ in his Black Reconstruction. Instead of attending to historically specific and determinate social relations, such theorists emphasise putative ‘original public meanings’ or an accretive ‘living constitution’. Alternative possibilities for constitutional theory may be identified by reappraising the insights and limitations of older analyses of American constitutionalism by Beard, Llewellyn and Hartz. These possibilities are not premised on the fetishisation of constitutional meaning, on fidelity to the framers’ white supremacist and antidemocratic project or on a commitment to the notion that the constitution is perpetually perfectible.