The Constitution outside the Constitution

Article excerpt




     A. Extracanonical Materials and Constitutional Functions
        1. Constituting the Government
        2. Conferring Rights on Individuals
        3. Entrenching Structures and Rights Against Change
     B. Three Cases
        1. The Statutory Safeguards of Federalism: Gonzales v. Oregon
        2. The Clean Water Act as a Constitution: Rapanos v. United
        3. The Extracanonical Constitution of War Powers: Hamdan
           v. Rumsfeld
     C. Extracanonical Functions


     A. The Rule of Recognition Problem
     B. Extracanonical Mechanisms of Constitutional Change
     C. Relative Entrenchment


     A. Doctrine
        1. Two Federal Courts Puzzles
        2. The Continuity of Interpretation
     B. Pedagogy and Scholarship



   There is the notion that the primary source of information as to
   what our Constitution comes to, is the language of a certain
   Document of 1789, together with a severely select coterie of
   additional paragraphs called Amendments. Is this not
   extraordinary? (1)

My central claim in this Article is that the American "constitution" consists of a much wider range of legal materials than the document ratified in 1789 and its subsequent amendments. To clarify what I mean, it will help to begin with a thought experiment derived from comparative constitutional experience. It has long been said that the English have an "unwritten" constitution. This, however, is clearly untrue. As Adam Tomkins has pointed out, "notwithstanding its allegedly unwritten nature, much (indeed, nearly all) of the [English] constitution is written, somewhere." (2) The Magna Carta, the Bill of Rights of 1689, the Parliament Acts of 1911 and 1949, the European Communities Act of 1972, the Human Rights Act of 1998 (3)--these all form parts of the English constitution, and they are all written down. As Professor Tomkins explains, "[t]he unhappily misleading phrase, 'written constitution' really means 'codified constitution.' Thus, a written, or codified, constitution is one in which all the principal constitutional rules are written down in a single document named 'The Constitution.'" (4) That single codified document is what the English lack.

In a polity without a codified constitution, the content of "The Constitution" must be derived functionally, not formally. Matthew Palmer has described this perspective as "constitutional realism" that "seeks to identify the nature of a constitution through observing its operation in reality." (5) The functional perspective predates the realist movement, however. As early as 1908, A.V. Dicey defined English constitutional law to include "all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state." (6) Hence, we know that the Parliament Acts of 1911 and 1949--defining the role of the House of Lords in the legislative process--are part of the English Constitution because of what they do, not because they have any formal markers that set them off from ordinary legislation. (7)

The thought experiment that I wish to propose involves thinking of the American constitutional order in the same way, despite the fact that we purport to have a codified constitution. It is possible to identify, in the abstract, certain functions that constitutions perform. In England, whatever laws actually perform those functions are considered part of "the constitution." (8) What if we thought of the United States' legal system in the same way? What would our "constitution" look like then? (9)

My descriptive claim is that much--perhaps even most--of the "constitutional" work in our legal system is in fact done by legal norms existing outside what we traditionally think of as "the Constitution. …