Toward a New Constitutional Anatomy
Nourse, V. F., Stanford Law Review
INTRODUCTION I. RETHINKING CONVENTIONAL STRUCTURAL WISDOM A. The Matching Game B. The Constitution of Power C. Shifting Power, Shifting Relations II. SEPARATION OF POWERS A. Categorical Conflict and Embedded Relations B. Change, Baselines, and Relative Shifts in Power C. Implied Federalism and the Separation of Powers III. FEDERALISM A. Lopez: Risks to Majorities B. Morrison: Where Inequality Meets Commerce IV. IMPLICATIONS OF VERTICALITY A. The Question of Constitutional Ontology B. The Case of the Empty Constitution C. Political Economy, History, and Convergence D. Popular Constitutionalism: A Coda
"A thinking being can, accordingly, act on the basis of the absent and the future." (1) "The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject, and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone...." (2)
By the end of the twentieth century, constitutional law and commentary had been preoccupied for decades with the question of judicial review. (3) This preoccupation focused courts and commentators on the subject of the question--the judiciary. Theories of judicial review soon became theories of judicial interpretation and theories of judicial interpretation became questions about judicial function (analysis of texts, history, and precedent). (4) This focus should seem odd if one is concerned about the structure of the Constitution as a whole. After all, the courts are only one of three departments and arguably the least powerful. Indeed, one must wonder whether a theory that begins with the courts' view of the Constitution will simply end there. Put another way, the risk is that, in the name of judicial review, courts will look into a Constitution with three departments and find only one--the judicial one.
This question of structure has become only more important now that scholars have begun moving away from what I will call the "judiciocentric position"--the search for a theory of judicial review. New work on popular constitutionalism (emphasizing that constitutional interpretation is undertaken outside of courts (5) and that judicial review has its origins in popular ideals) (6) makes this question particularly salient. For if constitutional meaning is policentric, (7) if other institutions are capable of deciding and likely to decide constitutional questions, how are basic structural matters to be determined? Should Congress decide questions about the separation of powers? Should the people, in their multivalent social movements, (8) decide questions of the allocation of power between states and nation? Popular constitutionalism thus raises important and unaddressed questions for constitutional structure as a whole. In this Article, I offer a way of implementing a more holistic, more populist view of structural matters. I reject the judiciocentric position that the separation of powers and federalism require recourse to descriptive texts or functions (9) and argue, instead, that our government is, in important structural senses, a set of popular relations. Once one takes that view, one can predict with far greater confidence real risks to the people from structural change. (10)
The Constitution was created first and foremost to govern, not for the sake of constitutional interpretation. (11) The revolution of 1787 was hailed as the moment not of the courts' arrival or the advent of a new interpretive regime, but rather of a new relation between the people and their government. …