Constitutional Theory Transformed

Abstract

I argue in this article that the recent interest in theories of constitutional change has the potential to transform American constitutional theory. Using constitutional change during the New Deal as my focus, I argue for a historicist approach to constitutional theory that is at odds with the interpretive approach favored by most scholars. I present a detailed argument as to why the New Deal was a constitutional revolution, summarize my own theory of constitutional change, and comment on Bruce Ackerman's similar theory. My theory is advanced within the framework provided by the methodology of historical institutionalism in political science. I then argue that the main theories of constitutional interpretation are not historicist theories, no matter what claims they make to historical backing. Constitutional theory should become by embracing a historicist perspective on the evolution of American constitutionalism. Such a perspective involves abandoning the narratives of continuity that characterize all major theories of interpretation. It means accepting that discontinuities such as the Civil War, Reconstruction, and the New Deal are part of the American constitutional story. I conclude with some comments on what a contextual constitutional theory would look like.