Constitutional Theory Transformed

Yale Law Journal, Vol. 108, June 1999

Posted: 14 May 1999

Abstract

I argue in this article that the recent interest in theories of constitutional change has the potential to transform American constitutional theory. Using constitutional change during the New Deal as my focus, I argue for a historicist approach to constitutional theory that is at odds with the interpretive approach favored by most scholars. I present a detailed argument as to why the New Deal was a constitutional revolution, summarize my own theory of constitutional change, and comment on Bruce Ackerman's similar theory. My theory is advanced within the framework provided by the methodology of historical institutionalism in political science. I then argue that the main theories of constitutional interpretation are not historicist theories, no matter what claims they make to historical backing. Constitutional theory should become "contextual" by embracing a historicist perspective on the evolution of American constitutionalism. Such a perspective involves abandoning the narratives of continuity that characterize all major theories of interpretation. It means accepting that discontinuities such as the Civil War, Reconstruction, and the New Deal are part of the American constitutional story. I conclude with some comments on what a contextual constitutional theory would look like.

Suggested Citation

Griffin, Stephen M., Constitutional Theory Transformed. Yale Law Journal, Vol. 108, June 1999, Available at SSRN: https://ssrn.com/abstract=161768

Stephen M. Griffin (Contact Author)

Tulane University Law School ( email )

6329 Freret Street
New Orleans, LA 70118
United States
504-865-5910 (Phone)
504-862-8857 (Fax)

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
786
PlumX Metrics