Summary and Keywords
The study of constitutionalism often begins with the question of what a constitution is. Sometimes the term refers to a single legal document with that name, but the term “constitution” may also refer to something unwritten, such as important political traditions or established customs. As a result, scholars sometimes distinguish between the “Big-C” constitution, that is, the constitutional document, and the “small-c” constitution, the set of unwritten practices and understandings that structure political life.
Constitutionalism is typically associated with documents and practices that restrict the arbitrary exercise of power. Most constitutions contain guarantees of rights and outline the structures of government. Constitutions are often enforced in court, but nonjudicial actors, like legislatures or popular movements, may also enforce constitutional provisions.
The relationship between democracy and constitutionalism is not at all straightforward, and it has received an enormous amount of scholarly attention. Constitutionalism seems to both undergird and restrain democracy. On the one hand, constitutions establish the institutions that allow for self-government. On the other, they are often said to restrict majoritarian decision-making.
Related to this question of the relationship between constitutionalism and democracy are questions about how constitutions change and how they ought to change. Can written constitutions change without changes to the text, and can judges bring about these changes? Do extratextual changes threaten or promote democracy?
Finally, not only do individual constitutions change, but the practice of writing constitutions and governing with them has also changed over time. In general, constitutions have grown more specific and flexible over time, arguably, allowing for a different kind of constitutional politics.
Big-C and Small-c
As Walter Murphy famously explained, the question “what is the constitution” rarely has a straightforward answer. Is it a single document? Or does the constitution include other important texts, political traditions, widely shared ideals, or prominent interpretations (Murphy, 1986)? Even within the scholarly literature on constitutionalism, the word “constitution” can refer to very different things (Primus, 2013).
Some people use the term “constitution” to refer to a polity’s set of governing institutions and fundamental norms. This definition is sometimes associated with Aristotle’s use of politea, which is often translated as “constitution.” Aristotle used this term to describe the “way of political life, [the] set of habits of political action and valuation” that characterize a particular political community (Robinson, 1995). Modern-day scholars have begun to describe this set of fundamental political institutions and understandings as the constitution outside the constitution (Young, 2007) or the “small-c constitution” (Eskridge & Ferejohn, 2010; Posner & Vermeule, 2013). The small-c constitution is lived, rather than written, so to identify the small-c constitution, one must examine actual political practices.
The term “Big-C constitution,” by contrast, refers to a document (or possibly set of documents) that announces its own status as the supreme law of the land (Law, 2010). In polities with a written constitution, this document is likely to reflect or structure some elements of the actual political world and to diverge from the real world in its description of others. Many argue that the age of the U.S. Constitution and the difficulty of amending its text have meant that changes in the nation’s fundamental governing structures occurred in the absence of changes to its formal constitutional document. For instance, both the rise of mass political parties in the 19th century and the major expansion of the power of Congress to regulate commerce in the 20th century occurred without any change to the text of the U.S. Constitution. As a result, there is generally understood to be a sizeable gap between the Big-c and small-c constitutions of the United States. Other polities may exhibit a smaller gap between their Big-C and small-c constitutions, but it is hard to imagine that any text (no matter how frequently amended) could fully capture the evolving institutions, ideas, and practices that structure that polity’s political life. It is likely, therefore, that a gap of some size will always exist between the Big-C and small-c constitutions.
Constitutions as Constraining and Constitutive
The term “constitution” is typically associated with the most basic or most important law, and the language of Big-C and the small-c emphasizes that sense of the word. Yet the “constitution” is often understood to mean something more specific than simply a foundational document or set of institutions. It is typically associated with documents and practices that restrict arbitrary power. To be sure, many authoritarian regimes write and adopt constitutions (Ginsburg & Simpser, 2014). However, constitutions are generally identified with the establishment of limited, as opposed to authoritarian, government (Sartori, 1962).
Written constitutions may be helpful in regulating the exercise of political power. It is possible for an unwritten (small-c) constitution, a set of customary practices and understandings, to create limits on the exercise of governmental power. The British constitution, for instance, has been famously successful at establishing limited government, and it is not written (at least, not in the form of a single document). Nonetheless, the framers of America’s federal Constitution drafted a single document, in part out of the conviction that a single official text would be better at constraining government (Whittington, 1999), and it does seem possible that a publicly accessible document could be useful in defining and defending limits on the exercise of public power and the discretion of officeholders.
It is worth noting that the notion of limiting government is, itself, somewhat ambiguous. By “limited government,” one might mean a government that is restricted in its scope and authority, that remains small in size and refrains from intervening in the social and economic life of the polity. This is often the sense in which the phrase is used. But constitutions may also “limit government” in a very different way. “Limited government” may simply mean that government cannot use its power in arbitrary ways; that is, the exercise of public power is limited by law and perhaps by subjects’ participation in governance. Constitutions may therefore be said to establish limited government even if they create large and active states. Some constitutions, for example, require that the government provide goods like free education, healthcare, or housing to its citizens. Although provisions of this sort do not cabin government’s scope or restrict its reach, they nonetheless serve as constraints or limits on the exercise of public power by forcing them to make certain policy choices (Zackin, 2013).
Although it is certainly common to associate constitutions with constraints on the state, some scholars have emphasized another core function of constitutions. After all, they argue, constitutions not only constrain governments, they also establish (or constitute) them (Maddox, 1982; McIlwain, 1940). Stephen Holmes has analogized constitutional constraints to grammatical rules. Such rules do designate particular choices as correct and others as nonsensical, but the purpose of placing certain choices off limits is to enable communication, not to limit it. To focus on the constraints inherent in grammatical rules would entirely miss the point of grammar. Constitutions similarly designate some options as legitimate and others as forbidden in order to make political organization possible (Holmes, 1995). Constitutional constraints, he argues, must be understood as necessary for enabling democracies to govern.
Rights and Structures
Constitutions are often said to consist of two basic features: a list of rights and a description of the structures of government. Constitutional rights are those provisions of a constitution that justify demands on the state. In other words, rights mandate particular courses of action or types of restraint. Many modern-day scholars of constitutions describe constitutions as contracts, and view rights as explicit lists of (at least some of) the choices government is not authorized to make (e.g., Mueller, 1991). This contractual vision of constitutionalism is widely associated with John Locke’s argument that people empower a government on the understanding that it will not violate any of the rights that they retained in forming it. In this sense, rights are constraints on the state.
Yet, rights construct, as well as constrain, politics. Political rights (such as the right to vote or to criticize government) constitute citizens as legitimate participants in the governing process. Rights also structure the claims of many reform movements by providing a legal language and moral touchstone for declaring that a nation’s highest ideals require a change in policy (Beaumont, 2014; Hartog, 1987). Because constitutional rights typically have a universal character, presenting themselves as entitlements of all people (or at least citizens), they encourage those making rights claims to associate themselves with other rights bearers. Thus, rights politics typically involves recasting the interests of a group as the interests of the entire people (Kennedy, 2002). Rights (whether they inhere in constitutional or statutory law) often constitute politically significant relationships by structuring people’s thinking about those relationships and, by extension, about their own identities and deserts (Albiston, 2006; Ewick & Silbey, 1998; McCann, 1994).
Rights have received a great deal of study, but some constitutional scholars have called for increased attention to the governing structures that constitutions establish. Some have argued that it is structures, not rights, that can guard against the arbitrary and unchecked exercise of political power (Levinson, 2006). This focus on structures has a long history. In fact, James Madison famously declared that declarations about the limits of government were merely “parchment barriers,” and that institutional design was the real key to constraining government (Federalist 48). By dividing state power among different institutions that will compete with one another to control the state, constitutions, he explained, can guard against tyranny. This idea of divided powers is typically attributed to Montesquieu (Montesquieu, 1989).
Of course, constitutional structures also enable governance. Despite the heated controversies about the scope and nature of legitimate governmental ends, it is clearly the case that constitutions not only constrain governments, but also construct them. As Sotirios Barber has emphasized, it would make little sense to establish governmental institutions if they did not have some positive purpose(s) (Barber, 2003).
Empirical research into the origins of constitutions has demonstrated that constitutions are, indeed, developed to do political work. To understand the origins of constitutions, then, social scientists and historians have focused their attention on the functions those constitutions were designed to perform. One such function is to protect private property. Douglas North and Barry Weingast demonstrated that the English constitution emerged from a battle between the nobles and the monarchy over whether the crown would continue to expropriate nobles’ property. When the nobles found themselves in a position to overthrow the king, they chose instead to strike a bargain with him. The king would remain in power on the understanding that in the future he would consult the nobility (or a parliament) before levying taxes. The idea of limited government, North and Weingast (1989) argued, was born in the service of property rights. Charles Beard famously described the U.S. Constitution as the product of a similar aim, to protect the property of the wealthy. Of course, in the United States, it was not a monarch who was threatening to expropriate and redistribute property but democratic majorities (Beard, 1913).
Constitutions are also frequently written to mark regime change and establish that political life under the new regime will be meaningfully different. Like the English nobles, who reached a constitutional settlement to prevent a recurrence of monarchical expropriation of their property, constitutional drafters sometimes seek to ensure that things that the society has either endured or witnessed will not happen in the future. Kim Scheppele (2003) has termed this phenomenon “aversive constitutionalism.” Richard Primus (1999) has offered a similar analysis of the content of the U.S. Constitution’s Bill of Rights, as a list of things that the colonists had experienced under British rule and did not want the new federal government to repeat.
Constitutions also originate as a form of political insurance. Tom Ginsburg (2003) has demonstrated that in environments with real partisan competition, each group typically wants to establish limitations on the exercise of political power in the likely event that an opposing party wins political control. Similarly, Ran Hirschl (2004) has shown that elites create constitutional rights when they begin to fear that they may lose power, attempting to secure their policy victories against the influence of new governing coalitions and emerging democratic majorities.
Constitutions, may serve many other functions as well, and polities have adopted new constitutional provisions and interpretations for a variety of purposes. Some view constitutions as mechanisms to coordinate beliefs among diverse individuals within a polity (Hadfield & Weingast, 2014). Constitutions can also be used to communicate with people outside the polity, particularly to reassure financial and aid organizations that a new regime plans to respect private property rights (Farber, 2002; Klug, 2000; Law, 2008). In federal contexts, subnational constitutions can allow losing parties to challenge national norms (Beienburg, 2014). Finally, constitutional drafting is often imitative (Epstein & Knight, 2003; Fritz, 1994). Because constitutional provisions often spread between polities, particular provisions may simply be borrowed and do not represent a solution to political problems that the authors of that constitution faced during the drafting process.
It is relatively easy to strike a political bargain or draft a constitution; it is typically far more difficult to ensure that document can exert meaningful influence over what happens afterwards. To maintain authority over the exercise of political power, constitutions must establish enforcement mechanisms. As Hadfield and Weingast (2014) have explained, “Constitutions must be self-enforcing in the sense that all relevant actors—political officials, citizens and groups—have incentives to abide by the constitution’s prescriptive rules” (p. 137).
The most visible and widely discussed mechanism for constitutional enforcement is a constitutional court. A court can enforce the constitution by simply announcing its understanding of the constitution and refusing to enforce laws that it considers to violate that understanding. This type of enforcement is known as “judicial review.” Judicial review may exist in the presence or absence of norms of judicial supremacy, which designate the judiciary as the final arbiter of a constitution’s meaning. Normative theorists have engaged in an extensive debate about the advantages and dangers of judicial review and supremacy (Chemerinsky, 2004; Kramer, 2004; Waldron, 2006). Empirical scholars have tended to examine the place of judicial enforcement within the constitutional political system.
One important puzzle in the empirical literature has to do with why a government official would obey a judicial ruling, especially one opposed to his or her policy position or institutional interests. Alexander Hamilton famously argued that the judiciary, lacking the power of both the purse and the sword, would be the “least dangerous” of the three branches (Federalist 78). Political scientists, however, have demonstrated that elite political actors have many reasons to favor, and indeed construct, a political system in which the judiciary enforces the constitution, even against the other branches. Keith Whittington has demonstrated that American presidents have often helped to construct the supremacy of the Supreme Court’s interpretations of federal constitutional meanings because it helped them to maintain their own political coalitions and further their policy agendas (Whittington, 2007). Similarly, George Lovell has demonstrated that the U.S. Congress has deferred to the federal courts on issues that threatened existing partisan coalitions or electoral prospects (Lovell, 2003). Ran Hirschl (2004) has shown that elites strive to constitutionalize particular political issues in part because members of the constitutional court are often drawn from the same socioeconomic circles, and are therefore likely to enforce elite-drafted provisions.
Justin Crowe (2012) has demonstrated that institutional factors such as the structure, size, and budget of a judiciary help to determine its capacity to enforce the law. Matthew Ingram (2016) has emphasized the role of ideas in determining when particular courts or judges are able to exert independent enforcement power in new democracies.
Although constitutional enforcement is typically thought to involve the judiciary, it is possible for members of political branches other than the Court to interpret and enforce a constitution. Legislators and executives can enforce constitutions by promoting legislation they deem to be required by the constitution or refuse to endorse legislation they consider to be violations of that constitution. Thomas Jefferson, for instance, pardoned people convicted under the alien and sedition acts, and famously espoused the view, known as “departmentalism,” that each branch (or department) of government must decide for itself what the Constitution means. Andrew Jackson similarly described his veto of the bank of the United States as an interpretation and enforcement of the Constitution (Tushnet, 2008). FDR’s New Deal legislation can also be seen as the enforcement of a constitutional vision that included the right to be free from want (Sunstein, 2004).
It is also possible for people outside of political institutions to enforce a constitution. For instance, voters may punish or threaten to punish electoral officials at the ballot box if they believe that those officials have violated a constitution. Courts might be useful in coordinating these efforts by declaring some governmental policies unconstitutional (Law, 2009); but courts need not issue constitutional rulings for people to organize around the claim that an elected official has violated the constitution. In Colorado, for instance, miners organized powerful strikes when the state legislature refused to obey the state’s constitutional mandate that it enact an eight-hour day (Zackin, 2013). Some have also argued that jury nullification—the act of acquitting citizens based not on findings of fact but on beliefs about justice—allows ordinary citizens to enforce the constitution when they believe that the laws involved are unconstitutional (Kramer, 2004).
Ordinary people are important in making constitutions work in less dramatic ways than jury nullification. Without a sufficiently widespread belief in the legitimacy of a constitution, it is unlikely to maintain its hold over politics. Madison famously worried that public veneration was required to ensure the success of the newly drafted U.S. Constitution (Federalist 49). Others have argued that civic virtue is essential to a society’s achievement of constitutional ends and respect for constitutional principles. Stephen Macedo (1990), for instance, argues that unless citizens are sufficiently capable of reasoned self-government, the constitutions of liberal democracies will ultimately mean very little. James Fleming and Linda McClain have similarly written, “The realization of the Constitution’s ends and indeed the maintenance of the constitutional order requires a formative project of cultivating civic virtues in responsible citizens” (Fleming & McClain, 2013, p. 200).
Democracy and Constitutional Change
The relationship between democracy and constitutionalism is not at all straightforward. On the one hand, constitutions establish the institutions that allow for self-government. They outline electoral processes, elected offices, and designate the powers of particular elected officials. The very idea that government is limited by some bargain with the governed, the concept at the heart of constitutionalism, is at least akin to the idea of democracy. On the other hand, if in a democracy, the people are sovereign, and the sovereign is bound by the constitution, then that constitution would seem to stand in the way of self-rule by trumping the preferences of democratic majorities and limiting their discretion. In the context of American politics, the unelected Supreme Court, with its ability to nullify the laws enacted by elected representatives, is the paradigmatic illustration that constitutions check rather than facilitate rule by democratic majorities. Alexander Bickel (1962) famously termed this feature of American constitutionalism the counter-majoritarian difficulty.
Constitutional scholars have offered a number of responses (perhaps even resolutions) to the counter-majoritarian difficulty. One approach has been to note that, empirically speaking, courts are generally part of larger political structures within democratic societies, and therefore unlikely to be able to act in counter-majoritarian ways for very long. As Robert Dahl (1957) famously explained, presidents appoint and senators confirm the justices of the Supreme Court. Since these officials are products of democratic choice, the Court that they shape may lag behind public opinion, but it will rarely be out of step with it for very long. Thomas Keck (2014) has argued that, by and large, the Court enforces rights that have the broad support of the American public, and that far more troubling than the counter-majoritarian difficulty is the possibility that the Court will only enforce the rights that one party values, and will ignore those espoused by their opponents. Mark Graber has noted that that the U.S. Supreme Court has been most likely to declare statutes unconstitutional when the issues were divisive of national lawmaking coalitions, and therefore politically difficult for lawmakers to address. Since in these instances, the real controversy is not between the unelected court and the elected legislature but between members of the dominant electoral coalition, the Court is not acting in a counter-majoritarian fashion, merely a “non-majoritarian” one (Graber, 1993).
While empirical scholars of American politics have tended to downplay the counter-majoritarian difficulty, a great deal of normative constitutional theory has grappled with the paradoxical relationship between constitutionalism and democracy. One prominent approach among normative theorists has been to argue that unchecked majoritarianism is actually dangerous to a democracy. John Hart Ely, for example, has argued that to maintain its democratic character, a polity’s channels of democracy must remain open, meaning that people must have the chance to remain a meaningful part of the society and to participate in their governance. If democratic majorities attempt to choke off these avenues of participation, for example by suppressing unpopular speech or excluding minority groups, than these majoritarian efforts must be checked in the name of democracy (Ely, 1980). Jan Elster has famously likened constitutional majorities to Ulysses, who, knowing that he would be tempted by the Sirens’ song, willingly bound himself to the mast of his ship so that he would be unable to steer it on a deadly course. Constitutions, Elster explained, serve (some of) the same purposes as Ulysses’s ropes, allowing democratic majorities to ensure that they will resist the dangerous temptations they will surely face in the future (Elster, 2000). On this account, constitutionalism checks some democratic outcomes to preserve the larger democratic system and protects essential features of democracies from temporary public sentiments that jeopardize them.
As this formulation suggests, many view constitutions as inherently long-term ventures. For both empirical and normative scholars, constitutionalism is not merely about constraining those who happen to hold political power in the moment; more fundamentally, it is about preserving particular principles and institutional arrangements long into the future. If there is change in ways that are too responsive to democratic majorities, constitutions start to look problematically anti-constitutional. A constitution that yields (or yields too readily) to the passions of the moment will be unable to protect essential democratic principles, particularly the rights of minorities. Constitutionalism, then, is widely understood as a multigenerational project, with continuity as at least one of its central aims (Balkin, 2011). This focus on entrenchment and stability, however, raises its own normative questions.
A people that is bound by a supreme law drafted and ratified by members of a long-dead generation hardly seems to be sovereign or self-governing. Constitutions that hold citizens to long-since repudiated commitments look troublingly antidemocratic. This antidemocratic tendency is sometimes known as the dead-hand problem. Thus, even those who emphasize the entrenchment function of constitutions recognize that to avoid the dead-hand problem, to remain useful and relevant to the political life of a democracy, constitutions must be able to change along with their societies, at least to some degree. How those changes should and do occur, however, has been an enormous source of debate.
Changes to Constitutional Texts
Written constitutions generally provide mechanisms for their own modification or even replacement. There exists a wide range of amendment provisions, but the most common are those that require legislative supermajorities to approve an amendment or those that require legislatures to take repeated votes over a period of time, or both. Public referenda are often required to ratify an amendment, and in federal systems, approval by subnational units is typically obligatory (Klug, 2015). The U.S. Constitution, which is generally considered harder to amend than most constitutional documents, specifies two possible mechanisms for its own amendment. The first, and the only one that has ever been used, requires a two-thirds vote of both houses of Congress and subsequent ratification by three-quarters of the states. The second allows two-thirds of the state legislatures to call a constitutional convention, and also requires three-quarters of the states to ratify the work of that convention. It is also possible for a constitution to specify different amendment mechanisms, establishing more rigorous procedures for particular sections of the constitutions (Klug, 2015). At first glance, these procedures may seem to offer a solution to the problem of democracy and constitutionalism. It might be possible to design an amendment procedure that makes it easy enough to amend the constitution that it can be suitably responsive to democratic commitments, but not so easy that it is vulnerable to majoritarian whims (Whittington, 2015). Of course, it’s not at all obvious how to engineer, or even identify, this optimal level of rigor.
It is not even clear how to assess the relative difficulty of different amendment rules. After all, the difficulty of constitutional amendment must be the product of both rules and norms (Ginsburg & Melton, 2015). It seems quite likely that people will be more willing to amend a frequently amended constitution than one that is rarely amended, regardless of the formal procedures required. Thus, to determine the ease of amending a particular constitution, it is necessary to determine whether its amendment procedures are hard to achieve in their particular political contexts. It is arguably possible to tell how difficult it is to amend a constitution by counting the number of times it has been done in a given number of years. But such a measure can only describe the frequency of amendment; we would then need to infer that frequently modified documents must be easier to amend. It also seems possible that, regardless of the particular amendment rule in place, it may be easier to make small changes to a constitutional text (ones that do not affect or that merely tinker with the basic structures or practices of governance) than big changes (ones that eliminate or transform those structures or practices).
Sometimes, textual change to constitutions takes the form of replacement instead of amendment. In other words, a polity can replace its constitutional text with an entirely new one. This discarding of an old document in favor of a new one is sometimes viewed as, and may result from, the failure of the old constitution to serve as an effective governance structure (Negretto, 2012). However, some have argued that polities ought to replace their constitutions relatively frequently. Perhaps most famously, Thomas Jefferson (1789) wrote that each generation should replace the existing constitution with one of its own making. In this spirit, some of the U.S. state constitutions require people to hold periodic referenda on whether they want to convene a constitutional convention to write a replacement document (Benjamin, 2009). These revision practices reflect the view that replacement may be part of a healthy constitutional system.
Indeed, the line between amendment and replacement can sometimes be quite blurry, because it is possible to overhaul an entire constitution using amendment procedures or to “replace” a constitution with one that is almost entirely identical to its predecessor (Versteeg & Zackin, 2014). Empirical studies of constitutionalism have tended to examine the complicated relationships between constitutional amendment, replacement, and length (Elkins, Ginsburg, & Melton, 2009; Lutz, 1996; Tsebelis & Nardi, 2014). Despite this upswing in the study of formal revision procedures, however, the vast majority of the literature on constitutional change is focused not on textual revision but on extratextual developments in constitutional meaning, particularly those that occur through judicial interpretation.
Changes Announced by Judges
Even in polities with a written constitution, the small-c constitution often changes without any alteration in the Big-C document. One mode of change is judicial interpretation, when new judges understand an old text to be saying something it has never before been understood to mean. Ever since Oliver Wendell Holmes (1881) wrote, “The life of the law has not been logic; it has been experience” (pp. xvi, 422) there has been a growing consensus among legal academics that legal texts (including constitutional texts) are, at least to some degree, indeterminate. Judges therefore must make choices in interpreting these texts, and these choices often change as new judges rethink the decisions of their predecessors.
Of course, the achievement of constitutional change through judicial interpretation raises serious normative concerns. In addition to the counter-majoritarian difficulty, some scholars argue that a constitution will be unable to act as a constraint if its meaning can shift simply through judicial rereadings. More conducive to the role of a constitution in constraining government and more consistent with the logic of legal texts is the judicial practice of interpreting a text by trying to figure out what its authors intended (or understood) it to mean (Whittington, 1999). In the absence of formal written amendments, a constitution interpreted this way would possess a stable and democratically legitimate meaning. This view is known as originalism, and different originalists have offered different elaborations on the basic approach (Fleming, 2007).
In the last decades of the 20th century, originalism was generally posed against an interpretive approach known as living constitutionalism. Living constitutionalists argued that abstract principles are embedded in the constitution, and that Supreme Court justices should apply those principles in ways are justified by current conceptions of these broad moral precepts. More recently, some proponents of this position have also begun to describe themselves as originalists, emphasizing their fidelity to the principles enshrined in the document by its original drafters (Balkin, 2011). Broadly speaking, those who advocate evolving judicial readings of the Constitution argue that such evolution is more consonant with the moral object of democratic constitutionalism than are static meanings. The Constitution, they explain, is, at its core, devoted to fairness, equality, and justice, and societal understandings of these moral principles change over time. Judges’ constitutional readings, then, ought to change along with the beliefs of the larger society (Dworkin, 1977). Bruce Ackerman (1998) has argued that if enough ordinary citizens consider the major constitutional controversy of their day, and then register their conclusion through their votes in a presidential election that hinges on the issue, then the constitution has effectively been amended. When the Court decides in accordance with such an understanding, it should be seen as responding to (and effectively ratifying) that informal constitutional amendment.
Despite the long-running debate about the normative acceptability of doctrinal changes occurring in the absence of textual changes, it is quite clear that such changes can and do occur. These can be a gradual and incremental evolution in meaning over the course of many high court cases or relatively sudden doctrinal reversals. Rule of law is typically thought to require predictability, and the doctrine of stare decisis (or, let the decision stand) encourages (Anglo-American) judges to resist dramatic changes in interpretation. Such reversals have certainly occurred, sometimes with a relatively short period between the two cases.1 Kersch has demonstrated that, although many well-worn constitutional narratives about American constitutional development describe gradual (and perhaps even inevitable) evolution, American constitutional development has instead been characterized by significant discontinuities in meaning. The Supreme Court, in other words, adopted dramatically new readings of the Constitution in very short periods.
Empirical scholars of America’s constitutional politics have emphasized that the courts rarely (if ever) effect large-scale constitutional changes on their own. The judiciary is part of a larger governing regime, and judicial opinions are likely to reflect the political needs of that regime (Gillman, 2002; Polsky, 2012). The larger regime from which courts emerge shapes judges’ beliefs and their expressions of those beliefs (Clayton & Gillman, 1999). As Julie Novkov (2015) has explained, “judges are neither purely legal interpreters operating solely through their own internal jurisprudential logics nor are they driven exclusively by their political attitudes or strategic calculations. . . . The institutions they inhabit and engage create boundaries around their room for maneuver” (p. 821). Doctrinal changes are, therefore, part and parcel of larger shifts in governing coalitions. As a result of its emphasis on governing coalitions, this regime-focused literature presents a top-down account of constitutional change.
Those who study social movements and their litigation strategies have offered a view of constitutional changes that originate from less elite and empowered circles. These scholars emphasize that grass-roots social movements often have to do the work of changing norms and beliefs before law can change, and then have to get cases into the right courts, making arguments to which those courts will be receptive (Francis, 2014; Nejaime, 2016; Siegel, 2006). This pursuit of constitutional change by ordinary people is sometimes referred to as the constitution outside of the courts (Tushnet, 1992). Since these movements are generally arguing for a reinterpretation of constitutional texts, however, many ultimately employ litigation (and therefore courts) in their pursuit of constitutional change. Charles Epp (1998) has demonstrated that process of changing judicial doctrine from the bottom up requires the creation of a support structure for legal mobilization, consisting of activists, advocacy lawyers, and sources of financing. Although this structure is rarely visible on the face of judicial decisions, it undergirds and enables evolutions in doctrine.
Changes That Go Unannounced
It is also possible for the basic practices or structures of governance to change in ways that are never marked by changes in either constitutional text or doctrine. Steve Griffin (1996) has argued that in the context of American constitutional development, these political changes have been among the most important. Changes in military technology and the size of America’s standing army, for example, have significantly enhanced the president’s ability to start wars without prior approval from Congress (Griffin, 2013; Polsky, 2006). This dramatic growth in the president’s capacity to begin and conduct an armed conflict did not result from or in a change to the Constitution’s text and no judicial decision was rendered to bring about or even mark the transformation. Such unannounced constitutional transformations are not limited to the American context; have occurred in other constitutional systems as well (Albert, 2015).
The strength of this more capacious view of constitutional change is that it calls attention to transformations in the actual arrangements of power, the lived experience, in a given constitutional system. It is arguably far more productive to study what is actually different than to assume that all constitutional changes are reflected in text or doctrine. One challenge of this approach, however, is that it is so difficult to locate the boundaries of this form of constitutional change. If neither the text of a constitution nor its meaning need be involved for a development to be considered constitutional, then it is hard to determine which changes should rightfully be described as constitutional and which should not.
Design Trends and the Importance of Time
Not only do individual constitutional systems change over time, but the global practice of constitutionalism has evolved as well. The act of writing and then governing with a constitution, in other words, is not a single or timeless practice. There are several features of constitutionalism that have remained stable across time, such as their ability to constrain the exercise of political power and the normative questions associated with constitutional change. However, constitutions vary dramatically in both their length and their content.
Constitutions are very much products of their times. Some are written in the wake of huge national crises, with the explicit goal of preventing such crises from recurring (Primus, 1999; Scheppele, 2003). Even in the absence of extraordinary crises, the particular concerns of constitutional drafters inevitably derive from their historical and political contexts. Constitutional drafting is a political process, and the documents that result reflect that political battles and ideational environments from which they emerged. It is perhaps surprising, then, that individual constitutions tend to look so much like other constitutions, particularly those written around the same time.
The historical period in which a constitution is written typically exerts enormous influence on its form and content. Polities look to one another when drafting their constitutions. This feature of the drafting process has resulted in particular provisions becoming popular in particular periods. This is true of both national and subnational constitutionalism (Fritz, 1994; Law & Versteeg, 2011). T. H. Marshall (1950) famously argued that 18th-century constitutional drafters concerned themselves with securing civil rights, 19th-century drafters with guarantees of political rights, while the 20th century witnessed the creation of social rights. It is not only particular provisions that become trendy, however. The entire way that constitutions are designed has been changing in the centuries since the emergence of the first written constitutions.
The earliest written constitutions are relatively short documents. Over the centuries, constitutions have tended to grow longer, encompassing a wider range of issues and more thorough discussions of each. Rather than simply being frameworks for governance and a list of broadly phrased rights, newer constitutions (particularly those of democratic polities) have tended to include detailed policy instructions (Versteeg & Zackin, 2016). As one of the oldest written constitutions in the world, the U.S. Constitution is on the short and rigid end of the spectrum. In this respect, it has become something of an outlier on the global stage, which is now populated by relatively lengthy and flexible constitutions. Even in the United States, most constitutions (i.e., those of the states themselves) are significantly longer and subject to far more frequent revision than their federal counterpart (Dinan, 2006; Levinson, 2012; Versteeg & Zackin, 2014).
As constitutions grew longer, they tended to undergo revision with increasing frequency, in part as a result of the fact that detailed policy instructions are likely to require replacement as they become outdated. If particular budget numbers are included in constitutions, for instance, these figures will probably need to be updated with some frequency. Where frequent constitutional revision is the norm, various groups will use the processes of constitutional revision to address their own concerns, increasing the detail and scope of these documents. As a result, constitutional specificity and flexibility are likely to be mutually reinforcing elements of constitutional design (Versteeg & Zackin, 2016).
These longer and more flexible constitutions tend to promote a dialogue between courts and legislatures, encouraging courts to consider the aims of the drafters (Dixon & Williams, 2014). This relationship is quite different from that between the United States’ federal judiciary and Congress. In the United States, the Supreme Court has assumed increasing supremacy over the meaning of the (short and relatively stable) federal constitution (Whittington, 2007). In other constitutional systems, however, flexible constitutions seem to encourage legislatures and even citizens groups to engage in extended exchange with courts about what the constitution forbids or requires. In the U.S. states, for instance, labor organizations at the turn of the 19th century amended state constitutions to overturn state court rulings that jeopardized their legislative victories (Zackin, 2013). More recently, constitutional documents have formalized this back and forth between courts and legislatures. The Canadian Charter of Rights and Freedoms, for instance, contains a provision that allows the legislature to enact legislation notwithstanding the judicial determination that it violates certain parts of the Constitution (Roach, 2004). Some constitutional scholars have begun to recommend this dialogic form of constitutional politics, arguing that this design may avoid the pitfalls of either legislative or judicial supremacy, and lead to better realization or protection of constitutional rights (Gardbaum, 2013; Hershkoff, 1999; Tushnet, 2008).
Finally, despite the large literature on “constitutional design,” it is important to recognize the limits of this concept (Devins, Koppl, Kauffman, & Felin, 2015). The term “design” suggests creative latitude and the possibility of generating an optimal plan, but rarely (if ever) are these notions applicable to constitutional drafting. Although a written constitution can structure a political environment, it must first emerge from that environment. As a result, a constitution’s form and content are constrained (by history, external pressures, and internal politics) before it is even drafted. Moreover, constitutional drafters are necessarily political actors, with particular and partial visions of what should be optimized and compromised. In a world of written constitutions, then, drafters may be forced to engage in design (Levinson, 2016), but they must act without the benefit of unbounded possibilities or uncontested purposes.
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(1.) One particularly dramatic example of this phenomenon is the three-year period between the U.S. Supreme Court’s ruling in Minersville School District v. Gobitis, 310 U.S. 586 (1940) and its direct reversal of this opinion in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).