A Study in Constitutional Development: The Effect of Political and Social Institutions on the Campaign for a Written Constitution in Connecticut

Abstract

The study of constitutionalism, and in particular of constitutional development, represents a significant recent turn in the field of public law. Constitutional development occurs, of course, through formal adoption and amendment. And the study of courts has established that judicial declarations contribute to this process. A growing body of scholarship also shows that the overtly political actors of society – legislatures, executive officers, political partisans, and even the people – continually engage in the informal creation, maintenance, and transformation of constitutional meaning.The growth in the study of constitutionalism and consti- tutional development in the last decade is reflected in a recent collection, Sotirios A. Barber and Robert P. George, ed., Constitutional Politics: Essays on Constitution Making, Maintenance, and Change (Princeton, NJ: Princeton University Press, 2001), as well as the following notable works: Bruce Ackerman, We the People: Transformations (Cambridge, MA: Harvard University Press, 1998); Stephen M. Griffin, American Constitutionalism: From Theory to Politics (Princeton, NJ: Princeton University Press, 1996); Wayne D. Moore, Constitutional Rights and Powers of the People (Princeton, NJ: Princeton University Press, 1996); Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge, MA Harvard University Press, 1999). While recent work illuminates instances of this latter type of constitutional development, there remain questions about the processes by which development occurs. Political actors create, maintain, and transform constitutional meaning, but the recent studies suggest that institutional contexts play an important role in shaping the consequent constitutional development. The very constitution that is subject to the forces of political actors, for example, also establishes an important, if not necessarily determinative, context that shapes the path of its continued development – consider that a government of separated powers, with its competing legislative, executive, and judicial branches, will facilitate conflicting efforts both to maintain existing and to construct new constitutional meaning.Ackerman, We the People; Whittington, Constitutional Construction. The works by Ackerman and Whittington demonstrate as well that the same effects follow from other features of constitutional design, such as Congress's bicameralism and the vertical separation of powers between national and state governments. Other institutions affect constitutional development as well. For example, social institutions exist alongside of and interact with political institutions. Through interactions, the former can enhance or undermine the stability of the latter. In this article, I argue that the study of constitutionalism must consider the full range of political and social institutions that shape constitutional development.