Constitution-Centrism in Positive Theory
Over the past several decades, there have been two central areas of focus for American constitutional scholarship: the singular, written constitutional document, and then the courts that interpret that singular document. The movement widely known as “popular constitutionalism” has started to turn the focus away from the courts part of that equation, either on historical grounds (e.g. Larry Kramer) or normative grounds (e.g. Mark Tushnet, and Kramer too, incidentally). But the move away from having constitutional scholarship focus only on the singular written constitutional document has been slower.
There has been progress in this area recently. The Holmes Lectures that Bruce Ackerman gave at Harvard–which form part of the foundation of Volume 3 of We the People–focus on statutes which might achieve a constitution-like status. William Eskridge and John Ferejohn have turned their article from a few years ago on “super-statutes” into a book. And Ernest Young had an article published this past spring about foundational commitments besides the Constitution–as he calls it, the “constitution outside the constitution.” These are just a few examples
For my latest project, called “Government in Opposition,” though, I have been struck by how little ideas about forms of entrenchment beyond constitutions have made an impact in some areas of scholarship. My article is about how many countries, particularly in the past 40 years or so, have started to mandate that opposition parties occupy governing positions–that they chair legislative committees, occupy cabinet positions, appoint judges, and so on. Part of my project is to explain why and how these government in opposition regimes came to exist. And, naturally, I have been reading much of the literature about the origins of constitutions.
One theory of the origins of constitutions is that constitutions function as a form of insurance to ensure political parties that fear that they will be out of power that their rights and powers will still be protected once they are out of power. There are obvious questions about this theory–why would judges appointed by a new majority protect the rights of the old majority and current minority?–but what I have been writing about is how many declining political factions looked not to constitutions as forms of insurance, but to government in opposition regimes. Constitutions, according to these declining political majorities, were extensions of majorities, enforced by majority-appointed judges–while government in oppositon regimes were self-enforcing, and ensured that even once these declining majorities were out of power they could still be relevant, but without requiring any majority intervention (such as judicial review).
In doing so, these declining majorities that I am writing about often explicitly, if not implicitly, rejected constitutions as insurance, in favor of government in opposition regimes. So why is the focus in so many of these positive, explanatory accounts still on constitutions as almost the sole form of insurance? I suspect that people writing in cognate fields could think of other examples of a still-excessive focus on constitutions to the detriment of other forms of foundational commitments.