The Constitution outside the Constitution.

• Author: Young, Ernest A.

ARTICLE CONTENTS INTRODUCTION I. OUR EXTRACANONICAL CONSTITUTION 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 States 3. The Extracanonical Constitution of War Powers: Hamdan v. Rumsfeld C. Extracanonical Functions II. ENTRENCHMENT AND CONSTITUTIONAL CHANGE A. The Rule of Recognition Problem B. Extracanonical Mechanisms of Constitutional Change C. Relative Entrenchment III. THE FUNCTIONAL BOUNDARIES OF CONSTITUTIONAL LAW A. Doctrine 1. Two Federal Courts Puzzles 2. The Continuity of Interpretation B. Pedagogy and Scholarship CONCLUSION INTRODUCTION

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." (10) A constitution generally does three primary things: It constitutes the government, that is, it establishes the various institutions of the government and sets out their powers and obligations. It identifies certain rights of individuals against that government. And (sometimes) it entrenches these structures against change, absent compliance with a difficult amendment procedure. A moment's reflection, however, reveals that under our modern institutional arrangements, the first two of these functions are no longer exclusively, or even primarily, performed by constitutional norms. (I shall have more to say about the third function--entrenchment--later on.) For virtually all practical purposes, the boundary between federal and state power is set by the terms of federal statutes; likewise, statutes and regulations play a far more significant role in regulating the separation of powers at the national level than do constitutional rules. Many of our most important individual rights--rights against discrimination based on age or disability, rights to welfare, medical care, and social security--stem from statutes rather than the Constitution. Even the basic electoral structure of our democracy is created and regulated by an assortment of nonconstitutional federal and state law rules.

Consider, for example, the Federal Communications Act. (11) That Act divides authority between the Congress and the Executive by delegating certain functions to an agency; (12) it further delegates some tasks to state governments while reserving others to federal authority. (13) The Act also confers both substantive and procedural rights on regulated entities and individuals. (14) From a functional point of view, the Communications Act might truly be described as a "constitution" in its own right. To be sure, the Act is not "entrenched" in the sense that it can only be modified by constitutional amendment. On the other hand, the broad range of important interests, both individual and commercial, that the Act balances and protects ensures that it is, as a practical matter, quite difficult to alter in any sort of fundamental way. (15)

It is time we recognized and thought systematically about the fact that much of the law that constitutes our government and establishes our rights derives from legal materials outside the Constitution itself. When lawyers talk about the Constitution being "open ended," they generally mean that constitutional norms themselves can be extended to cover unforeseen changes in technology or mores: the Fourth Amendment now covers wiretapping; (16) the Due Process Clause now covers abortion. (17) The more important sense of open endedness, however, lies in the extent to which the Constitution permits basic constitutive questions to be answered by subconstitutional norms. My point is emphatically not that the Constitution is irrelevant to most of today's legal problems. However, its relevance typically takes the form of a set of outside limits and a source of general constitutional values. The particular rules enshrined in the Constitution will themselves rarely have significant bite on our most important constitutional controversies. (18)

We can thus better understand our legal order if we decouple the constitutive function of a constitution from the entrenchment function. Other scholars, from Karl Llewellyn in the 1930s to Bruce Ackerman, William Eskridge, John Ferejohn, and many others today, have recognized that our political order is constituted by norms existing outside the canonical document. (19) But they have insisted on treating these extracanonical norms as "higher law," which puts their theories on a collision course with Article V and creates a great deal of pressure to develop an alternative rule of recognition to identify those norms that have achieved this higher status. If one is going to confer entrenched constitutional status on a norm that has not gone through Article V ratification--on the institutional innovations of the New Deal, for example--then one needs a highly determinate way to identify both which norms have achieved this status and what their precise content is. This rule of recognition problem has loomed large in critiques of alternative theories of constitutional change, as well as more general approaches to interpretation predicated on a "living constitution." (20)

My aim is more modest. I want to suggest that the set of norms that "constitutes" our government is in fact much broader than the set of norms that is constitutionally entrenched. A statute like the 1934 Act creating the Federal Communications Commission (FCC) may be constitutive of an institution without having any "higher law" status making it more difficult to change. (21) Decoupling constitutive function from entrenched status decreases the pressure to confine the class of constitutive enactments to a narrow and precisely defined category of norms. In fact, it would be fair to say that most laws have some constitutive aspects, to the extent that they create a government post, empower an institution, or confer a right. The fact that ordinary laws perform these functions is important, but it does not make them any less ordinary.

Decoupling the constitutive and entrenchment functions has important implications for constitutional law. The first is to offer a relatively simple account of constitutional change outside the Article V amendment process. The second, more doctrinal implication is to undermine sharp distinctions between constitutional claims and claims under statutes and regulations, as those distinctions are currently applied or proposed in areas like statutory construction, federal jurisdiction, and civil rights remedies. Finally, broadening the definition of "constitutive" norms beyond those that are formally entrenched ought to expand the jurisdiction of constitutional scholars, both as to what we teach and what we study.

Part I of this Article discusses three primary functions of constitutions--establishing the institutions of government, conferring rights on individuals, and entrenching these structures against easy change--and demonstrates that ordinary law...