Constitutional Theory Transformed

By Griffin, Stephen M. | The Yale Law Journal, June 1999 | Go to article overview

Constitutional Theory Transformed

Griffin, Stephen M., The Yale Law Journal

Theories of constitutional change should try to see the Constitution as a whole,(1) to understand how all three branches of government have contributed to the course of constitutional development in the United States.(2) Among recent theorists of constitutional change, Bruce Ackerman deserves great credit for highlighting the importance of this issue and stressing the need to consider the relationships among all the branches of government during three great constitutional moments: Founding, Reconstruction, and the New Deal.(3)

While Ackerman is primarily interested in exploring the implications of constitutional change for constitutional law, I am interested in what this means for constitutional theory.(4) Using the New Deal as my focus, I will argue in this essay that the new concern with constitutional change has the potential to transform American constitutional theory. I argue for an historicist constitutional theory that is at odds with the interpretive approach of most constitutional lawyers and scholars.(5) Within an historicist framework, the theory of constitutional change is prior to the task of constitutional interpretation.(6)

This perspective on constitutional change is inspired in part by the methodology of "historical institutionalism" in political science.(7) Historical institutionalism is often called a "state-centered" approach because it takes the concept of the state seriously and focuses on its halting evolution through American history. Perhaps the most important contribution of historical institutionalism has been its emphasis on the autonomy of the state.(8) As historian Alan Brinkley describes, the main thesis of this state-centered approach is that "[t]he state and the institutions surrounding it ... are themselves crucial factors in determining the outcome of political struggles, indeed often more influential than social forces or the efforts of popular interest groups."(9) The point is that the state does not simply provide the arena in which various interests straggle for dominance. The state also writes the rulebook, polices the field, decides the winners, or even changes the game in the middle of play. The structure of the state and, especially, the decisions made before the players take the field, have a real and continuing influence on policy outcomes.(10)

My point of departure is how constitutional law accounts for the New Deal, one of the most crucial periods of constitutional change in American history. I initially confront the best known, most widely accepted, and most implausible account of constitutional change during the New Deal--that it involved no real change as such, but was simply a restoration of the previous wisdom of the Marshall Court. Ackerman notes that lawyers tell themselves a story about the New Deal that "denies that anything deeply creative was going on. This view of the 1930s is obtained by imagining a Golden Age in which Chief Justice Marshall got things right for all time by propounding a broad construction of the national government's lawmaking authority."(11) What I will call the restoration thesis, or restorationism, is still very much alive.(12)

Ackerman is correct to assert that the restoration thesis serves as a primary way for contemporary constitutionalists to integrate the New Deal into the larger story of American constitutionalism. But the importance of the restoration thesis goes far beyond this. It is a key prop in maintaining traditional, ahistorical approaches to constitutional law and theory. In effect, the thesis asserts that our constitutional world is meaningfully related to the world of the early republic, the world of James Madison, Alexander Hamilton, and John Marshall. The thesis maintains continuity with the past, reassuring scholars that there is an unbroken American constitutional tradition. It thus prevents scholars from gaining a more perspicuous view of the process of constitutional change by denying that overwhelmingly significant changes have occurred since 1787 in the structure of American government.

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