Constitutional Typology, Part I: Stages in a Constitutional Lifecycle

In my last post, I talked about the possibility of creating a typology for popular constitutional activities. I hope to sketch out the elements of one possible typology in a series of forthcoming posts.

The typology I envision looks at popular constitutional forces from three different perspectives:

1. Constitution's lifecycle
2. Actors
3. Actions

As that brief description may suggest, the different perspectives are three ways of looking at the same constitutional history. Used together, they create a multi-layered look at a single constitutional system. Used individually, the different perspectives offer a way to look closely at one aspect of a particular constitutional system, or they provide a means of comparing several constitutional systems.

Today, I want to begin the focus on the first perspective, by sketching the basic stages of a constitutional lifecycle. 

The lifecycle of constitutional order has three elements: creation, stasis (which Iwill refer to here as constitutional system), and destruction.  But while that suggests that constitutional orders exist on a time line, with a beginning and an end, constitutional history suggests that the story is more complex.

Most obviously,  the destruction of one system gives rise to the creation of another: with the Declaration of Independence, the American colonies proclaimed they were no longer part of the English constitutonal order. That was followed, first, by an informal constitutional order, and, second, a more formal order defined by the Articles of Confederation. 

Destruction and creation are, then, not so easy to separate in the history of a constitutional order. That point seems rather obvious, and appears to provide a contrast to the middle, presumably static, period of the constitutional lifecycle. But in fact, even in the middle period it is sometimes hard to draw clear boundaries. 

How, for example, do we view the Civil War, Reconstruction, or the period of the New Deal?  Was the Civil War an effort at constitutional destruction that failed? Or was it a struggle to maintain the constitutional system? Did the Reconstruction Era amendments to the Constitution alter the constitutional order, causing a rupture that was so significant that it effectively destroyed the old constitutional order? Or was it an effort to clarify constitutonal principles that were already understood, but not fully part of the constitutonal text?

And the questions can easily become more complex. If Reconstruction was a rupture, what do we make of the fact that it took decades to implement the commands of the Reconstruction Era amendments? Does that suggest the United States went through a nearly century long period of constitutional destruction? How should we characterize the New Deal, with its creation of an administrative state and its other changes to constitutional order? Was it simply a modest adaptation to economic and social changes? Or was it the destruction of an old order and the creation of a new one?

Often, the answers to these questions depend on the trajectory of the history that we chose to tell. If we want to characterize the Civil War as a fight over preserving the Union, we frame it as one sort of constitutional moment, telling the story of a constitutonal destruction prevented. If we put the War into the larger context of citizenship, rights, and race relations we may cast the story differently, describing a moment of constitutional change that invited (if it did not fully implement) the creation of a new constitutional order. 

But the answers to those questions may also depend on our understanding of constitutional history, more generally. Is the history we are trying to tell the account of a particular constitutional text? If so, perhaps Reconstruction, with its dramatic constitutional amendments,  is a moment of destruction and creation, rather than continuity, on the theory that those amendments significantly altered the balance of power between the state and federal governments. Yet if our emphasis is on text, we might tell the story of the Civil War and New Deal, which turned on issues of interpretation, as periods of constitutional disputation, not periods of creation or destruction.  Or we might split the difference, reading the Civil War as a moment of disputed interpretation, and the New Deal as the culmination of the constitution created during Reconstruction.

But what if we decide that our constitutional history focuses on changes in constitutional order, the full panoply of practices, customs, interpretations, and text, rather than just on the changes to a document? If so, we may find many more moments of constitutional destruction or creation during the ostensibly stable period of constitutional system.  The rise of judicial review (and the increased willingness to strike down state or federal laws that appeared to conflict with freedom of contract) in the late nineteenth and early twentieth century might be read as a period of constitutional creation/destruction, for example. Likewise, the Warren Court's increased willingness to incorporate parts of the Bill of Rights into the Fourteenth Amendment, and to impose national standards on state criminal procedures, could be cast as a period of constitutional creation.

So while the three stages in a constitutional lifestyle are clear, the distinctions between them are not always obvious and often turn on the approach we take to the constitutional story we are telling. At the same time, how we draw the distinctions between the various stages may also depend on how we characterize the activities we are describing. And so in the next post I want to explore the different types of activities (particularly popular activities) that we find in the various stages of a constitutional lifecycle. 

ERD