- Can Anyone Spare Some Change?Incorporating Development and Change into Constitutional Theory
Political and legal scholars have largely failed to incorporate a sophisticated theory of institutional and political change into constitutional theory. In this paper, I outline the underdeveloped conception of change set forth in the dominant strain of constitutional theory and how it fails to describe and account for the true nature of development in constitutional regimes. I further detail why understanding institutional and political change is of fundamental importance to constitutional analysis. Without a theory of development and change, constitutional theorists fail to provide plausible means of evaluating constitutional politics outside of the courts and, thereby, a way of achieving the good political regimes that they seek to realize.
Since the late 1950s, American constitutional theory has been dominated by theories providing the Supreme Court with better interpretive theories and justifications for judicial activism in light of the judiciary's non-democratic nature. Herbert Wechsler set constitutional theory on this path when he argued that the Supreme Court had parted with principled justification to reach its outcome in Brown v. Board of Education.1 Following Wechsler's complaint, works of constitutional theory were devoted, first, to the Post-New Deal political implication of an "active" Supreme Court, which willfully superseded democratically enacted legislation, and, second, to the jurisprudential development designed to re-establish judicial legitimacy following the perceived deviation from established doctrine following the Court's "switch in time" in 1937.2 Scholars on both the political left and right subsequently engaged in a race to craft better institutional justifications designed to quell complaints that the Supreme Court was a "naked power organ"3 and interpretive theories that would provide the Court the means of achieving certain outcomes acceptable to either the political left or right. The result of Wechslerian constitutional theory was conflating theory with constitutional law.
Inherent in constitutional theory as constitutional law is a theory of constitutional change that is driven by what the Supreme Court says. Charles Evans Hughes's idiom, "We are under a Constitution, but the Constitution is what judges say it is" sums up the essence of the theory quite well. In less memorable but less beguiling words, the courts are the institutions with primary (and ultimate) responsibility for defining the contours of constitutional meaning. In all but the rarest of occasions (e.g. formal constitutional amendment), constitutional change derives from the evolution of legal doctrine as dictated from the bench.
Such belief led constitutional theorists, mostly employed by the nation's elite law schools, to entrench their understanding of good political regimes within interpretive theories. Such can be seen in the most influential works of constitutional theory from the 1960s through the early 1990s, including the work of Alexander Bickel, John Hart Ely, Ronald Dworkin, and Bruce Ackerman. I will briefly sketch the nature of change in each of these scholars' theories to underscore the insufficient attention paid to change within a constitutional regime.
Alexander Bickel argued that judicial restraint was necessary in order to legitimate the practice of judicial review. Since judicial review "revise[s] a pre-existing order that is otherwise viable and was arrived at by more normal procedures," judicial restraint is necessary to prevent "enlarg[ing] authoritarian judicial power at undue cost in the effective and responsible functioning of the political institutions."4 Bickel's theory of judicial restraint was refined in John Hart Ely's Democracy and Distrust in which Ely argued that judicial review's proper place in the American system of governance was policing the democratic process.5
One might be tempted to argue that Bickel and, more so, Ely have a theory of change outside of the courts. Both theorists argue that the Supreme Court should protect the democratic process to ensure that political change is legitimate by including all eligible members of the polity in the deliberation and collective decision-making process. The role of the Court as the protector of the democratic process legitimates political change outside of the judiciary and, thereby, acknowledges that change can and will occur outside of the courts. However, Bickel and Ely fail to account for the courts functioning as part...