The Constitution Outside the Constitution

Abstract

In countries that lack a single canonical text, is defined to include all those laws that perform constitutive functions of creating governmental institutions and conferring rights on individuals. The British Constitution, for example, is generally thought to include a variety of constitutive statutes, such as Magna Carta, Parliament Acts, and Human Rights Act. This article proposes a thought experiment: What if we defined U.S. by function, rather than by form? Viewed from this perspective, the Constitution would include not only canonical document but also a variety of statutes, executive materials, and practices that structure our government. It would include, for example, Judiciary Act of 1789, Administrative Procedure Act, Executive Orders establishing Presidential control of administrative rulemaking, and non-statutory rules that govern voting in House and Senate and structure of our major political parties. These sorts of extra-canonical materials perform basic constitutional functions of constituting government and conferring rights on individuals. What they lack is a third characteristic shared by some (but not all) constitutions: formal entrenchment against legal change. Entrenchment has become central to American conception of a constitution, but I propose here to decouple entrenching function from constitutive function for purposes of constitutional analysis. This approach offers a relatively simple answer to one of most important problems in constitutional theory: How do we explain evident fact that structure of our government and rights of people have changed pervasively since Founding, in ways that are simply not reflected in Article V amendments to canonical text? The answer is that constitutional order can change in this way because most of it was never entrenched in canonical text to begin with. Most of salient changes - growth of administrative state, proliferation of individual entitlements - are changes to our outside constitution that are neither mandated nor forbidden by canonical document. Because I do not view these changes as any more entrenched than arrangements they replaced, I do not need to develop any complex and contestable theory of higher lawmaking to set these changes apart from other ordinary legislation. The functional account of constitutionalism offered here also has implications for constitutional doctrine and scholarship. My account tends to undermine doctrinal prescriptions grounded in a sharp dichotomy between constitutional and statutory claims. Such prescriptions would include arguments that federal courts' irreducible jurisdiction under Article III should be defined by their power to hear constitutional claims, or that federal civil rights statute, 42 U.S.C. § 1983, should be interpreted to exclude claims under federal statutes and regulations. Likewise, recognizing constitutive functions of statutes and regulations suggests that basic constitutional values - such as federalism or concern for individual rights - are just as relevant to statutory construction as they are to interpreting constitutional text. Finally, functional account suggests a broader set of concerns for constitutional law teaching and scholarship; in particular, it suggests that constitutional scholars should be concerned with institutional design of constitutive statutes, treaties, and regulations rather than solely focused on interpreting canonical text.