Recent public law studies demonstrate that the informal political construction of constitutional meaning-particularly by executive and legislative officials-manifests as an essential feature of American constitutionalism. A leading explanation of the phenomenon depends on the effect of formal amendment procedures. Given the inevitability of constitutional change over time, difficult and burdensome amendment procedures seem to require that political actors resort to informal means to pursue change and enshrine new constitutional meaning. While this explanation has been central to a number of studies of the federal constitution, it has also led to the exclusion of state constitutional experiences from the study of this phenomenon. This is likely because state amendment procedures are notably less difficult and (apparently) do not require the resort to informal means of change. I present evidence that informal political construction does occur in the states; it is as important there as it is at the federal level. I also argue, accordingly, that our studies and theories regarding informal construction must account for both federal and state experiences to provide a more complete appreciation of American constitutionalism.
The study of constitutionalism, and in particular of constitutional development, represents a significant recent turn in the field of public law. Constitutional development occurs, of course, through formal adoption and amendment. And the study of courts has established that judicial declarations contribute to this process. A growing body of scholarship also shows that the overtly political actors of society – legislatures, executive officers, political partisans, and even the people – continually engage in the informal creation, maintenance, and transformation of constitutional meaning.The growth in the study of constitutionalism and consti- tutional development in the last decade is reflected in a recent collection, Sotirios A. Barber and Robert P. George, ed., Constitutional Politics: Essays on Constitution Making, Maintenance, and Change (Princeton, NJ: Princeton University Press, 2001), as well as the following notable works: Bruce Ackerman, We the People: Transformations (Cambridge, MA: Harvard University Press, 1998); Stephen M. Griffin, American Constitutionalism: From Theory to Politics (Princeton, NJ: Princeton University Press, 1996); Wayne D. Moore, Constitutional Rights and Powers of the People (Princeton, NJ: Princeton University Press, 1996); Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge, MA Harvard University Press, 1999). While recent work illuminates instances of this latter type of constitutional development, there remain questions about the processes by which development occurs. Political actors create, maintain, and transform constitutional meaning, but the recent studies suggest that institutional contexts play an important role in shaping the consequent constitutional development. The very constitution that is subject to the forces of political actors, for example, also establishes an important, if not necessarily determinative, context that shapes the path of its continued development – consider that a government of separated powers, with its competing legislative, executive, and judicial branches, will facilitate conflicting efforts both to maintain existing and to construct new constitutional meaning.Ackerman, We the People; Whittington, Constitutional Construction. The works by Ackerman and Whittington demonstrate as well that the same effects follow from other features of constitutional design, such as Congress's bicameralism and the vertical separation of powers between national and state governments. Other institutions affect constitutional development as well. For example, social institutions exist alongside of and interact with political institutions. Through interactions, the former can enhance or undermine the stability of the latter. In this article, I argue that the study of constitutionalism must consider the full range of political and social institutions that shape constitutional development.
In May 1638 the Puritan pastor Thomas Hooker preached a sermon that has been accounted as among the most important in colonial New England. According to existing interpretations, Hooker advocated popular sovereignty and popular control of civil government. Furthermore, in line with this interpretation, most scholars have accorded Hooker an important, if not also central, role in Connecticut’s adoption in 1639 of the Fundamental Orders—the colony’s articulation of its design for self-government. Contrary to the accepted interpretation, this essay demonstrates that Hooker’s sermon, based on Deuteronomy 1:13, was actually instruction to his congregation and audience about their religious duties as persons living under a government that God had ordained for them. This essay concludes that this change in perspective about the sermon’s meaning—from “political” to “religious”—has important implications for existing stories of New England political history.
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