Constituent Power and Constitutional Change in American Constitutionalism
31 Pages Posted: 6 Sep 2006
Date Written: September 5, 2006
Abstract
In this article, which is an extension and revision of my previous work, I argue that three ideas are fundamental to understanding the theory of constitutional change and the role of "constituent" or democratic power in constitutional change: (1) Political constitutions are self-enforcing documents; (2) How constitutional change occurs is influenced by the degree to which the constitution has been "legalized;" and (3) Change can be constitutional without being legal. That is, a significant amount of constitutional change occurs through the ordinary political process. I describe each idea briefly and then provide a more detailed discussion by situating the relationship between constituent power and constitutional change in the context of the early republic. I then discuss some of the difficult methodological issues raised by the study of non-legal or informal constitutional change. Finally, I use the example of presidential power, referencing impeachment and the post-9/11 debate, to illustrate how informal constitutional change can serve as a lens for understanding contemporary U.S. constitutionalism.
Keywords: constitutionalism, constitutional change, constituent power, American political development
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