The constitutional canon: the challenge posed by a transitional constitutionalism.

• Author: Teitel, Ruti G.

How does a transitional constitutionalism challenge the constitutional canon? My recent book, Transitional Justice (Oxford University Press, 2000), discusses constitutional theory in periods of radical political upheaval, and offers a transitional perspective on the American constitution. Here I merely highlight some ways that incorporating a transitional constitutionalism might challenge, as well as supplement, the dominant constitutional canon.

To begin, the very question of whether a transitional account ought to be brought to bear upon the canon illuminates its underlying assumptions about the place of constitutional law in our political scheme; that is, the extent to which the canon is constituted by and constituting of a distinctive normative constitutional conception. In particular, I contend that the prevailing canon derives from an understanding of American constitutionalism that is "foundational," and, by the same token, not transitional. The established account implies a certain structure, and periodization, that define the Constitution's salient historical and political context, and that also generate a canonical constitutional doctrine. Moreover, this foundational account privileges a particular conception of constitutional change. It is a normative account of the relation of constitutional law to political change that privileges the role of law over politics. In this idealized account, the canonical narrative is constituted by select caselaw that is said to construct constitutional transformation. To the extent that the dominant account seeks to relate to constitutional law a notion of steady state constitutionalism, it emphasizes an entrenched authoritative constitutional canon. A transitional perspective would challenge many of the dominant account's conceptual assumptions, with a number of interpretive consequences. A transitional account problematizes foundational constitutionalism's assumptions by suggesting a less idealized and more complicated view of the relation between constitutional and political change. Reconfiguring this relationship implies complicating the canon.

Consider the extent to which the narrative of American constitutionalism represented in most law school texts is predicated upon a distinctive periodization, which one might consider a canonical history. Conceiving of the first stage as the "founding" focuses scholarly attention on constitutionmaking and the constitutional convention and ratification...