Constitutional Faith and Text Immanence: Regulative idea, coping strategy, or reinforcement of tensions in US federal democracy

One could hardly expect that the consensus laid down in the original US federal constitution, whether regarding the horizontal and vertical division of powers, or fundamental rights, should remain unchanged or uncontested. Every political system must grapple with changing political parameters, social value shifts, and other challenges to which they must adapt. At the same time, the USA seems to have long demonstrated an especially problematic and tense relationship to the central or national level of government. However, socio-political contestation revolving around the competences of the federal government versus the states has been increasingly ignited in recent decades and well into the present on multiple policy and civic rights matters. Yet, the problem of conflicts branches and levels of government in the case of US federal democracy becomes complicated, but not necessarily caused alone by partisan polarization. The paper at hand explores the politicization of constitutional understandings, and the intensification of constitutional contestation as part of ‘ordinary politics’. More specifically, and building on institutional theories as well as American Political Development (APD) scholarship, text immanence as a political regulative idea will be examined. Accordingly, it is less the ambivalence and interpretative openness of the constitution, but rather its strict, textually ‘faithful’ reading that serves as a source or driver of political contestation. Thus, the paper elaborates how the tense relationship between federalism and democracy becomes exacerbated in the USA on account of the constitutional text immanence and the political contestation revolving around what have essentially become competing constitutions. One is oriented toward “We the People” and a “living constitution” adapting the constitutional compact toward actualization of its democratic promises, another rather ‘restoring’ government in line with constitutional original meanings, intents and even literal wordings. Consequently, and in contrast to constitutional amendment or revision, it becomes important to assess constitutional faithfulness – in different variants from e.g. living to original constitutionalism – and the institutionalized ‘sanctity’ of the constitution conceptionally for one, and as to whether it reinforces and even exacerbates the tensions between democracy, federalism, and governing in the U.S., for another. Finally, the paper will reflect on potential for further comparative research.