Part of
Political Argumentation in the United States: Historical and contemporary studiesDavid Zarefsky
[Argumentation in Context 7] 2014
► pp. 11–30
David Zarefsky
[Argumentation in Context 7] 2014
► pp. 11–30
From “conflict” to “Constitutional question”
Transformations in early American public discourse
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 that 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 that these noncompromisable issues introduce.
References (29)
Angle, P.M., ed. (1958). Created equal? The complete Lincoln-Douglas debates of 1858. Chicago: University of Chicago Press.
Bestor, A. (1964). The American Civil War as a Constitutional crisis. American historical review, 69:327–352. 
Brest, P. (1980). The misconceived quest for the original understanding. Boston University law review, 60:204–238.
Burke, K. (1945/1969). A grammar of motives. Berkeley and Los Angeles: University of California Press.
Carey, R.M. (1964). The first campaigner: Stephen A. Douglas. New York: Vantage.
Chemerinsky, E. (1987). Interpreting the Constitution. New York: Praeger.
Commager, H.S. (1938). Documents of American history (2 vols.). New York: F.S. Crofts.
Eisenhower, D.D. (1957a). Obstruction of justice in the state of Arkansas. Federal register, 1957, p. 7628.
. (1957b). Radio and television address to the American people on the situation in Little Rock. Public papers of the Presidents: Dwight D. Eisenhower, 1957 (pp. 689–694). Washington: National Archives and Records Service.
The Federalist. Multiple editions exist.
Fehrenbacher, D.E. (1978). The Dred Scott case: Its significance in American law and politics. New York: Oxford University Press.
Freehling, W.W. (1965). Prelude to civil war: The nullification crisis in South Carolina, 1816–1836. New York: Harper and Row.
Gallie, W.B. (1964). Philosophy and the historical understanding. London: Chatto and Windus.
Howe, D.W. (1979). The political culture of the American Whigs. Chicago: University of Chicago Press.
Jasinski, J. (1986a). The anti-federal vision of America in the Constitutional debate of 1787–1788. Paper presented at the annual convention of the Speech Communication Association.
. (1986b). Rhetorical practice and its visions of the public in the ratification debate of 1787–1788. Ph.D. dissertation, Northwestern University.
Kammen, M. (1986). A machine that would go of itself: The Constitution in American culture. New York: Knopf.
Kekes, J. (1977). Essentially contested concepts: A reconsideration. Philosophy & rhetoric, 10:71–89. Spring.
Levinson, S. (1982). Law as literature. Texas Law Review, 60:373–404.
. (1988). Constitutional faith. Princeton, NJ: Princeton University Press.
Miller, J.C. (1960). The federalist era. New York: Harper and Row.
Reed, T.B., ed. (1903). Modern eloquence(15 vols.). Philadelphia: John D. Morris.
Reid, H.O. (1956). The Supreme Court decision and interposition. Journal of Negro education, 25:109–117. Summer.
Sapir, E. (1934). Symbolism. In Encyclopedia of the social sciences (E.R.A. Seligman, Ed.). New York: Macmillan.
Scott, J.A., ed. (1963). Living documents in American history. New York: Washington Square Press.
Storing, H.J. (1981). What the anti-federalists were for. Chicago: University of Chicago Press.
Weisburg, R. (1986). Text into theory: A literary approach to the Constitution. Georgia law review, 20:939–994.
White, J.B. (1984). When words lose their meaning: Constitutions and reconstitutions of language, character, and community. Chicago: University of Chicago Press.
Wrage, E.J. & Baskerville, B., ed. (1962). American forum: Speeches on historic issues, 1788–1900. New York: Harper and Row.