Abstract
Amid much recent American work on the problem of informal constitutional change, this article stakes out a distinctive position. I argue that theories of constitutional change in the US must address the question of the relationship between the “small c” and “big C” Constitution and treat seriously the possibility of conflict between them. I stress the unavoidable role the text of the Constitution and structural doctrines of federalism and separation of powers play in this relationship and thus in constitutional change, both formal and informal. I therefore counsel against theories that rely solely on a practice-based approach or analogies between “small c” constitutional developments and British or Commonwealth traditions of the “unwritten” constitution and constitutional “conventions.” The alternative I advocate is to approach constitutional change from a historicist perspective that focuses attention on state building and the creation of new institutional capacities. This approach will allow us to make progress by highlighting that there can be multiple constitutional orders in a given historical era, thus accounting for the conflictual nature of contemporary constitutional development in the US.
Highlights
The study of constitutional change has moved from the periphery of US constitutional theory to the center
My present point is that the well-known failure of the Reconstruction Amendments was endogenous to the Constitution, a point that is much easier to see if we study the process of constitutional change from a historicist perspective
Amid much recent American work on the problem of informal constitutional change, this article has staked out a distinctive position
Summary
The study of constitutional change has moved from the periphery of US constitutional theory to the center. My purpose is to define and probe the nature of this problem, critique some influential practice based approaches, and argue for the descriptive and normative cogency of a historicist approach that understands constitutional change, both formal and informal, in terms of state-building. It is intended to establish a common ground for understanding the problem the phenomenon of informal constitutional change poses for American constitutional theory. It describes the phenomenon along descriptive and normative dimensions of analysis and briefly summarizes what I take to be the stakes of the inquiry. Part III provides a critique of recent, mostly descriptive theories that take a practice based approach These theories in effect advocate adapting the British or Commonwealth “unwritten constitution” tradition to the case of the US. The Constitution Outside the Constitution, 117 YALE LAW JOURNAL 408 (2007) (practice based theory)
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