Emotions in Constitutional Institutions

Abstract

The prevailing justification for constitutional institutions is that such institutions reflect and enable rational solutions to social problems. However, constitutions are constructed through emotionally driven processes that reflect both the public sentiments of the day and, at least to some extent, basic moral emotions. Historical examples from France and the United States demonstrate the role of such emotional processes in shaping the design of liberal constitutionalism. Further, constitutional law both sets and regulates emotional display rules; favors or disfavors certain emotional commitments; and, particularly through the formulation of fundamental human rights, reflects and shapes emotional moral judgments. The emotional contributors to constitutional design and interpretation may be called “constitutional sentiments.”