From “conflict” to “constitutional question”: Transformations in early American public discourse

Abstract

The American Constitution functions both as a condensation symbol and as a set of essentially contested concepts. The former function is the result of constructive ambiguity which produces broad social consensus; the latter function reflects the fact that Constitutional symbols are given meaning in specific controversies which produce dissensus. This seeming contradiction is contained by removing the battle for Constitutional interpretation from the public forum and assigning it to the specialized forum of the Supreme Court. Before the Civil War, however, the principle of judicial review was not yet established. Constitutional issues instead were the province of the same public forum which adjudicated the substantive questions. As a result, questions of expediency were transformed into Constitutional questions. Three case studies (the Alien and Sedition Acts, the nullification crisis, and the secession controversy) illustrate both the gradual evolution of Constitutional issues and the rigidity which these noncompromisable issues introduce.