Constitutional theory transformed.

• Author: Griffin, Stephen M.
• Position: Moments of Change: Transformation in American Constitutionalism

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.

Before we can gain a better understanding of the process of constitutional change, then, the restoration thesis must be debunked. I do this in Part I by setting out the restoration thesis as it has been advocated by scholars and the Supreme Court and critiquing it for being implausible as a matter of history. It is important to understand that I do not criticize restorationism for being an incorrect interpretation of the Constitution or for misunderstanding original intent. My critique is offered from an historicist perspective. After all, what leads scholars to defend restorationism? The problem here is an old one in legal scholarship--the failure to pay attention to historical context. This is where the methodology of historical institutionalism is useful. Its focus on the development of state institutions provides the context that is missing every time legal scholars invoke McCulloch v. Maryland,(13) Gibbons v. Ogden,(14) or some other Marshall Court decision as a precursor of the kind of government we have today.

The problems with restorationism are not confined to its understanding of the Marshall Court. Precisely because it is an interpretive rather than a historicist response to the New Deal, restorationism fails to understand the new constitutional order that was created by the Great Depression. I describe the constitutional changes of the New Deal along four dimensions: American democracy, constitutional doctrine, constitutional institutions such as the presidency and federalism, and American constitutional ideology.

My own theory of constitutional change, presented in the final section of Part I, is intended to avoid not only the mistakes of restorationism, but of all similar interpretive or legalistic theories. It therefore does not offer an alternative interpretation of the Constitution, but an historicist, state-centered perspective on the development of constitutional institutions. I argue that the attempt of the Founding generation to create a permanent constitutional order founded on enduring principles produced an impasse once the national state became truly activist in response to the Great Depression. The difficulty of formal amendment under Article V forced most constitutional change "off-text." Further, most of this change was not expressed in a legalistic manner through the development of Supreme Court precedent, but rather occurred in the course of ordinary political change. To track the changes brought on by the activist state, both during the New Deal and after, we must have a way of specifying the rules, practices, and institutions that operate as the functional equivalent of the rules contained in the text of the Constitution. Again, historical institutionalism is helpful. By directing our attention to the development of state institutions, it frees us from having to rely solely on constitutional amendments and Court precedents as markers of change. We can then view our constitutional order as a whole and ask new questions about the changing relationships among constitutional institutions in the post-New Deal period.

My critique of restorationism thus cuts very deeply into traditional approaches prevailing in constitutional law and theory. It implies that no conventional theory of constitutional interpretation can justify the constitutional changes that occurred during the New Deal. Since these changes are usually thought to constitute the very foundation of the contemporary regulatory-welfare state, the stakes are high. At issue is our understanding of the origins of the current arrangement of state institutions and of their legitimacy in a constitutional sense. The critique of restorationism thus suggests that in order to understand our constitutional world we must transform constitutional theory by turning our attention from interpreting the Constitution to understanding the relationship between the Constitution and the historical development of state institutions.

I explore the idea of a transformed constitutional theory in Part II. I begin by examining Ackerman's theory of transformative amendment, as recently advanced in We The People: Transformations.(15) Ackerman's theory of constitutional change is similar to my own in that he recognizes the need to adopt an historicist approach,(16) although this has not been recognized by many of Ackerman's critics.(17) But Ackerman attempts to account for constitutional change within a framework that remains ultimately legalistic. Ackerman argues that Reconstruction and the New Deal gave birth to unconventional amendments that have the same legal status as amendments made through Article V. His theory has trouble coming to grips with the more political aspects of constitutional change, especially how that change is produced by ordinary political struggles. For all its historical sophistication, Ackerman's theory is advanced in a legalistic mode that is not helpful in understanding twentieth century constitutional change.

I then argue that the main theories of constitutional interpretation are not historicist theories, no matter what claims they make to historical backing. I begin by describing some specific criticisms historians make of the use of history in constitutional interpretation. These criticisms may be familiar because they have been employed in the debate over originalism. But my purpose in emphasizing a few particular criticisms is to make the largely overlooked point that they apply to all theories of constitutional interpretation, originalist or not. This is because all the theories of constitutional interpretation normally discussed by scholars accept an ahistorical view about the role that the constitutional principles of the early republic can and should play in the complex democracy of the present. The emphasis in these theories--characteristic of American constitutionalism from the beginning--is on how the...