Asserting the relevance and significance of “Constitutional Law Outside the Courts” has been a rallying point for those scholars interested in how interpretation of the Constitution occurs in the legislative and executive branches of government. Properly understood, however, it does not refer primarily to extending to other branches of government an inquiry into interpretation familiar to those who study how the Constitution is applied by the federal judiciary. It refers rather to a new methodology for understanding the Constitution and American constitutionalism as a whole. The emergence of this new methodology was one of the most significant developments in constitutional theory in the last ten years.

The new methodology developed out of reflection on the problem of constitutional change - how to understand the relationship of the Constitution to large-scale changes in the American political system. This inquiry is often represented as originating with Bruce Ackerman’s exploration of transformational constitutional moments, but as my own work and the work of scholars such as Keith Whittington, Michael Klarman, Mark Graber, Howard Gillman, and of course Sandy Levinson illustrate, there are multiple points of origin for the new methodology.

In my own case, the work of historians such as Gordon Wood and Eric Foner, political scientists such as Walter Dean Burnham and Stephen Skowronek and political/legal scholars such as Sandy Levinson were powerfully suggestive. They showed that a number of distinct governing orders or constitutional regimes had existed in the United States and that a sensitivity to political history and a focus on government institutions and the structure of the American state were useful in understanding how one regime replaced another. For someone with a familiarity with constitutional history, the question was: how were these different regimes related to the text of the Constitution? It was evident that formal constitutional change through the Article V amendment process tracked these broader regime changes only imperfectly. Ackerman begins here, seeking to understand how broader changes in regime can be cabined through a reassessment of Article V.

From my point of view, it could not be assumed that this question could be answered using the conventional techniques of legal interpretation. It could not be assumed, that is, that understanding constitutional change was primarily a matter of extending the inquiry into constitutional interpretation into new venues. Rather, a new methodology was called for; one specially designed for this task, and this was the theoretical challenge I attempted to meet in my book, American Constitutionalism: From Theory to Politics.

The first step in the construction of this new methodology was to reorient the object of American constitutional theory. Constitutional theory could not, as Judge Posner and others would have it, be centered on constitutional interpretation, because this begged the question of whether legal interpretation provides the best way to understand the creation, maintenance, and destruction of the multiple constitutional regimes that have existed in the United States. Rather, constitutional theory should be conceived as an inquiry into the nature of American constitutionalism, defined explicitly as a political practice (where political is used in its broadest sense and includes the legal). Of course, this definition favors the emphasis of departmentalists on trying to give equal time to the interpretations of the Constitution put forward by each branch of government. Again, however, the purpose of this reorientation was not to understand American constitutionalism exclusively in terms of legal interpretation, but rather to lay the groundwork for a theory that would integrate legal/interpretive understandings with historicist/institutional ones.

The second step was to challenge the conventional wisdom that constitutional change can occur legitimately only through formal amendment and Supreme Court opinions. I explored two ways of doing this: one internal, the other external. The internal challenge was to explain how the constant political pressures for change could be handled in a constitutional system where formal amendment has been made very difficult. Given the difficulty of formal change, I argued that those favoring constitutional change had an incentive to represent even fundamental changes as reinterpretations of the Constitution or as a return to original understandings (and thus no change at all). This meant that constitutional change could not be tracked simply by examining the text. The structure of the Constitution itself forces constitutional change into informal channels. The external challenge relied on constitutional history to show that there were obvious instances where scholars agreed that constitutional change had occurred without formal amendment and in the absence of significant judicial action. In a sense, these instances, such as the formation of political parties, the change in the use of the presidential veto, adoption of procedures for acquiring new territory and admitting new states, the creation of independent regulatory agencies and the changes brought by the New Deal, are well known to every student of American constitutional history. But in another sense, there has never been a proper accounting of the relationship between these well-known events and the conventional wisdom that change can occur only through amendment or precedent. The way to overcome this was to tell the tale again in a way that makes clear that no satisfactory account of American constitutionalism can avoid the need to explain such informal, non-legal constitutional change.

Once the conventional wisdom was overthrown, the next step was to reconstruct the story of American constitutionalism in a way that takes account of informal, non-legal constitutional change. This requires a marriage between traditional constitutional analysis and the historicist and institutional accounts familiar to political scientists who study American political development. The meeting point between these different approaches was the idea of rules, practices and institutions that are functionally equivalent to those created by the Constitution, even though they appear nowhere in the document. The result was a dynamic account that focuses on situating contemporary constitutional institutions and issues in what Skowronek has called “political time” and what Ackerman would probably regard as a matter of the comparative structure of key constitutional moments.

With the transformation of the conventional wisdom concerning constitutional change into a dynamic methodology focused on comparing institutional orders, the theoretical challenge I set myself was hopefully satisfied. I can well imagine someone more attuned to constitutional interpretation asking what exactly was achieved by these theoretical maneuvers. In other words, how does this methodology help us understand and evaluate contemporary constitutional issues? I am fortunate that the years since the last AALS conference in 1993 have illustrated all too well the practical, as well as theoretical, virtues of this approach.

Let’s consider first the remarkable events and debate surrounding the impeachment and trial of President Clinton. From the standpoint of constitutional interpretation, the most important issue was whether Clinton’s conduct merited impeachment under the Constitution’s standard of “high crimes and misdemeanors.” At the time, I noted some puzzlement among constitutional scholars as to why they should be forced to grapple with this issue at all. Why was the constitutional system plunged into an apparent crisis for months? From the perspective of a dynamic institutional methodology, however, the question was why more scholars did not see this coming. Skowronek’s book, The Politics Presidents Make, a work largely ignored by legal scholars, predicted impeachment trouble for Clinton as a “preemptive president.” Indeed, it was hard to ignore the tensions that were gathering in the constitutional system in the late 1980s and early 1990s as a result of persistent divided government and continuous rounds of scandal politics, aided and abetted by the independent counsel statute. Scholars attuned to the historical and institutional dynamics of the American constitutional system could see this, while traditional scholarship continued to focus on the Supreme Court.

The kind of constitutional interpretation prevalent in the Clinton impeachment also showed the difference between the conventional wisdom on constitutional change and the advantage of a dynamic historical methodology. The testimony presented by law professors before the Subcommittee on the Constitution of the House Judiciary Committee in November 1998 was a fair sample of scholarly commentary. It focused overwhelmingly on the text of the Constitution and the circumstances surrounding its adoption in 1787. From a historical and institutionalist perspective, what was missing was any sustained and informed reflection on what had happened since 1787. A few witnesses made references to the presidential impeachments of Andrew Johnson and Richard Nixon, but these past relevant instances were mined hardly at all for the light they could have shed on the Clinton impeachment. Any reasonably comprehensive examination of the Nixon impeachment that was sensitive to institutional and political context would have shown the problem with the Clinton impeachment - it was being prosecuted without due attention to the role process has in building a sense of the legitimacy and desirability of removing the president among the American public. Speaking generally, this was a perspective that conventional constitutional commentary did not provide during the Clinton impeachment.

Scholars attuned to a historical and institutionalist methodology were also better equipped to understand the 2000 presidential election crisis. This methodology encourages us to ask questions about the parts of the Constitution that are crucial to running the political system but are only rarely the subject of litigation. For example, the Constitution is understood to give states the responsibility of running national elections. Whether a good or bad idea, it certainly is a consequential one, one which mainstream constitutional scholars discovered belatedly in the events that led to Bush v. Gore.

The Clinton impeachment and the presidential election crisis are related in another way to the subject of this panel. It is my impression that in the last ten years more scholars have become attuned to the general idea of constitutional law outside the courts. Yet there is little doubt that these events constituted two enormous blows to the normative project of encouraging constitutional actors and citizens to look with favor on the constitutional judgments rendered by the political branches. Both events were similar in that the constitutional capabilities of the political branches were largely ignored or actively denigrated. The latter phenomenon was especially evident in the election crisis, as various scholars and opinion makers dismissed the idea of the election being decided in Congress as too horrific to be worthy of consideration.

So those of us fascinated by “Constitutional Law Outside the Courts” are not interested in this subject because we like outliers, but because we are interested in the central case. But we define the central case differently from most constitutional law scholars. For us, the central case is not what the Supreme Court does but what is happening to American constitutionalism. We would like to reach a systemic understanding of the entire constitutional system, not just one important piece of it. Doing that requires going beyond the normal tools of legal and constitutional interpretation.