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

Suggested Citation

Griffin, Stephen M., Constituent Power and Constitutional Change in American Constitutionalism (September 5, 2006). Tulane Public Law Research Paper No. 06-12, Available at SSRN: https://ssrn.com/abstract=928493 or http://dx.doi.org/10.2139/ssrn.928493

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

Downloads
391
Abstract Views
2,141
Rank
138,669
PlumX Metrics