The Constitution outside the Constitution

Abstract

Countries lacking a single canonical text define the “constitution” to include all laws that perform the constitutive functions of creating governmental institutions and conferring rights on individuals. The British Constitution, for example, includes a variety of constitutive statutes, such as the Magna Carta and the Parliament Acts. This Article proposes a thought experiment: what if we defined the U.S. Constitution by function, rather than by form? Viewed from this perspective, “the Constitution” would include not only the canonical document but also a variety of statutes, executive materials, and practices that structure our government. What these constitutive materials lack is a third characteristic shared by some (but not all) constitutions: formal entrenchment against legal change. Decoupling the entrenching function from the constitutive functions offer a relatively simple answer to one of the most important problems in constitutional theory: how do we explain the evident fact that the structure of our government and the rights of the people have changed pervasively since the Founding, in ways that are simply not reflected in Article V amendments to the canonical text? The answer is that the constitutional order can change in this way because most of it was never entrenched in the canonical text to begin with. Most of the salient changes—the growth of the administrative state, the proliferation of individual entitlements—are changes to our “constitution outside the constitution” that are neither mandated nor forbidden by the canonical document. This functional account of constitutionalism also has implications for constitutional doctrine and scholarship. It tends to undermine doctrinal prescriptions grounded in a sharp dichotomy between constitutional and statutory claims, and it suggests that basic constitutional values— such as federalism or concern for individual rights—are relevant to statutory construction. Finally, the functional account suggests a broader set of concerns for constitutional law teaching and scholarship. author. Charles Alan Wright Chair in Federal Courts, University of Texas School of Law. I am grateful to Stuart Benjamin, Carina Cuellar, Phil Frickey, Mark Gergen, Heather Gerken, Scott Keller, Doug Laycock, H.W. Perry, Scot Powe, Eric Soskin, participants at the Boalt Hall, Duke, and Stanford faculty colloquia, and Dick Markovits’s Legal Scholarship seminar for helpful comments on the manuscript; to Robert Bruner, Lance Currie, Jennifer Ferri, Jane O’Connell, and Will Routt for research assistance; and to Allegra Young on general principle. 0408_YOUNG_0473.DOC 12/14/2007 1:07:31 PM the constitution outside the constitution 409 article contents