Toward a new constitutional anatomy.

• Author: Nourse, V.F.

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 INTRODUCTION

"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. In this sense, the Constitution is not only a text for interpreting, but is also an "act," a "constituting." (12) "[C]onstitutions not only limit power and prevent tyranny, they also construct power." (13) For all one would know from theories of constitutional interpretation and judicial review, however, this constituting, this activity of generating a government, is unimportant; according to the judiciocentric position, the Constitution conveys meanings rather than constructs power, it refers to the past and dictionaries rather than to the future and our real-life relations to one another. I believe that the judiciocentric view of the Constitution is partial and I believe that the Constitution--the whole Constitution--itself tells us this. (14)

To get a quick sense of how unrealistic the view from the judiciocentric position can be, just focus on a few key structural terms: the words "executive," "judicial," and "legislative," as they appear in the vesting clauses. (15) These are the terms that form the central focus of structural controversies and academic commentary on those controversies. (16) Now commit interpretive heresy: eliminate these terms from the document. Do courts cease deciding cases? Does the government halt its operations? Hardly. Indeed, very little happens to our government if these three words are excised from the text's vesting clauses. Now, eliminate the practices of government generated by the text--the practices of voting and representation--and what happens? There is no Congress, there is no one in the White House, and there is no one to appoint Supreme Court justices; in fact, there is no government at all. (17)

This raises an important question: Why is it that lawyers and courts have subordinated these practices to other texts, why have they subordinated relations that "govern" to words "to be interpreted?" One answer is that the judiciocentric position tends to privilege parts of the document; those parts that seem most like "ordinary" statute-law, (18) that look as if they can or should be "interpreted," or that fit with an ideal of what the judiciary does and can do (reading texts and precedents). In such a world, however, it seems fair to ask whether our government has been imagined by courts in their own image. (19)

In this Article, I try to show that an alternative view--a constitutive view--of the Constitution can better enable us to understand important questions about constitutional structure. At the center of the idea of a constitutive position is the notion of an economy of vertical relations between the governed and the governing, relations that create what we conventionally call the separation of powers and federalism. I then apply basic principles drawn from the literature on political economy (and, in particular, institutional economics) to flesh out an alternate view of the implications when we shift power from one set of governing relations to another. To this end, I take the unusual position of considering risks both to majorities and minorities from shifting structural relations (thus considering risks found in the literature on public choice and positive political theory along with the more conventional constitutional concern regarding risks to minorities). I then apply this analysis to some traditional problems surrounding separation of powers and federalism caselaw. I have chosen rather well-known problems because I want to show not only that this theory improves our understanding of the "whole" text, but also that understanding the constitutive Constitution can do important work in predicting realistic risks to governance.

In Part I, I recount a conventional way of viewing structural problems, shared in the law of federalism and the separation of powers, and offer a competing vision--one which conceives constitutional structure less as an allocation of functions or textual descriptions (executive, judicial, etc.) than as an allocation of real-life constituencies and their relationships to different parts of our government. In this Part, I develop a model that focuses on the way in which the constitutive provisions of the Constitution (20) create relations between the governed and governing, and I argue that "function" (whether it be the function denoted by the term "executive" or "judicial" or that by the "truly local" and the "truly national") serves as too crude a proxy for more refined, off-stage, and often-conflicting, normative judgments about risks to majorities and minorities.

In Parts II and III, I illustrate how this all "works," by applying it to familiar, but recurrent, problems of categorical contradiction in both separation of powers and federalism cases (specifically, Chadha and Morrison). It is here that I argue that a political economy of relations is more predictive of real structural risk than current linguistic contenders. If we look not at functions but instead at shifting political relations, we can far better assess risks to the people, whether these are risks to majorities or minorities. In both of these parts, I urge that structural issues conventionally considered to be quite distinct (federalism and the separation of powers) are implied in each other--that separation of powers cases have implied federalism dimensions and federalism cases have implied separation of powers dimensions. Finally, in Part IV, I consider the most important question: Why has the judiciocentric position helped us to create theories that silence the Constitution's generativity, its creation of power? For in such silencing, we have (inadvertently or not) ended up privileging dictionaries over voting, interpretive modes over representational relations, and judicial supremacy over popular governance.

1. RETHINKING CONVENTIONAL STRUCTURAL WISDOM

   If there is a shared problem in the doctrines of federalism and the separation of powers, it is due at least in part to a shared assumption about the constitutional text. Although the relevant...