Constitutionalism in an Age of Speed

Article excerpt

The fact of change has been so continual and so intense that it overwhelms our minds. We are bewildered by the spectacle of its rapidity, scope, and intensity.... Industrial habits have changed most rapidly; there has followed at considerable distance, change in political relations; alterations in legal relations and methods have lagged even more.... This fact defines the primary, though not by any means the ultimate, responsibility of a liberalism that intends to be a vital force.

--John Dewey, Liberalism and Social Action (1935) (1)

Defenders of constitutionalism would do well to heed Dewey's observation that the rapid-fire pace of contemporary social and economic activity poses considerable challenges. For sure, an impressive body of political and legal thought already addresses the nexus between constitutions and social and economic change. Both Progressive-era intellectuals and the Legal Realists, to some extent inspired by Dewey, harshly criticized the U.S. Constitution for its seeming inability to adjust effectively to twentieth-century social and economic conditions. (2) Since the late nineteenth century, advocates of social reform have repeatedly attacked Article V, arguing that its burdensome amendment procedures undermine possibilities for constitutional adaptation required by the changing realities of social and economic life. The left-wing journalist Daniel Lazare's recent characterization of the U.S. political system as subject to an anachronistic "frozen constitution" fundamentally inimical to reform is only the latest salvo in a series of harsh reviews of Article V previously proffered by suffragists, supporters of a constitutional ban on child labor, and New Dealers who sought a formal amendment codifying the welfare state. (3) For their part, many liberals in the legal academy long have touted the merits of an elastic "living constitution," arguing that only flexibility in legal exegesis can keep the constitution attuned to the challenges of social and economic dynamism. They consider the literalist and originalist modes of interpretation propounded by conservative rivals wrong-headed in part because such views allegedly obscure constitutionalism's temporal presuppositions: Written constitutions are intended to remain a source of binding law for "an indefinite but presumably long future," but constitutions can fulfill this function only if we interpret their norms flexibly in order to allow for adaptability amidst "so continual and so intense" social change. (4)

In light of this rich tradition of intellectual debate, it might seem presumptuous to assert that scholars have failed to focus sufficiently on the threats generated by social and economic dynamism to constitutionalism. Nonetheless, I argue here that contemporary debates in social theory provide renewed significance to the familiar question of the nexus between social change and constitutionalism. (5) In 1935, when Dewey referred to the "rapidity, scope, and intensity" of social and economic change, he anticipated a core theme of recent social theory, according to which we can only make sense of present-day social and economic affairs by focusing on their high-speed character. Ours is an epoch in which social and economic processes are undergoing a multi-pronged acceleration that raises many difficult questions for legal scholarship (I). (6) Social and economic acceleration challenges the noble aspiration to establish fundamental constitutional "rules of the game" capable of serving as an effective binding force on legal and political actors for a relatively long span of time. Conventional ideas about constitutionalism are predicated on achieving a modicum of legal constancy and clarity, but this task becomes increasingly difficult in a social world in which "the rapidity, scope, and intensity" of change becomes ever more significant (II).

After showing that the recent turn in social theory to provide "conceptual attention to the timing and spacing of human activities" raises tough questions for constitutionalism, I sketch the outlines of an institutionally-minded typology of how constitutional systems adapt, albeit typically "by drift and by temporary . …