Understanding Informal Constitutional Change

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 must address more directly 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 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". In particular, I critique theories developed by Karl Llewellyn, Ernest Young, Adrian Vermeule, and David Strauss. The alternative I advocate is to approach constitutional change from a historicist perspective that uses work from American political development scholarship to focus attention on how state building and the creation of new institutional capacities are linked to constitutional change. 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.