Lorianne Updike Schulzke (Yale University – Law School; Northern Illinois University College of Law) & Robert Capodilupo (Yale Law School) have posted Becoming Written Constitutionalism on SSRN. Here is the abstract:
Scholars have long recognized two kinds of constitutions. The British, or small-c variant meant the organization of governmental institutions and a broad swath of laws, customs, and principles pertaining to government and its relationship to the people it governed. The American homegrown connotation, or large C constitution, referred to a single text which set the bounds of government and protected rights. Traditionally, it was thought that the British variant was discarded at the Founding in favor of the American and that the two meanings were held in distinct contrast to one another.
However, beginning with Bruce Ackerman in the 1990s, a minority of scholars have blurred the two meanings, or insisted that the open-textured British version survived alongside its American variant to provide substantive meaning to the American Constitution. Some form of this trend is found in Baude and Sachs’ Original Law Originalism and recent scholarship on the “general law.” This blurring has seemingly reached ascendance in the form of Jonathan Gienapp’s Against Constitutional Originalism which challenges most forms of originalism in positing the US Constitution inherited both textual and open-textual traditions.
This growing trend raises the question of how, exactly, the Founding generation themselves understood the constitutions they were writing. This study seeks to shed further light on this question by performing a corpus linguistics study of 17,308 uses of constitution between 1760-1799. It shows that ambiguity was introduced with state constitution writing in 1776. Thereafter, the British definition faded and was quickly replaced as the dominant definition by the American variant, and in significant numbers. This article also investigates why this shift occurred through traditional historical methods and ties it to the writing of state constitutions between 1776-1784 as constitution-writing procedure and ideas about that procedure shifted and evolved.
This research shows that writing them changed constitutions’ meaning and also changed what they were. Writing elevated certain concepts above others, rendering them higher fundamental law which controlled ordinary laws, creating constitutional dualism. Though such dualism was imperfectly perceived at the framing, this dawning perception did not impact what was done nor its legal efficacy. Thus, writing constitutions down limited the range of meanings for discrete texts, rendering them more firmly fixed. This study and history undermines any blurring and general law variants of originalism.
An important article that addresses historical claims central to central questions in contemporary constitutional theory. If the meticulous research presented in this paper is correct, it has important implications for work by Baude, Campbell, Gienapp, Sachs, and other. Highly recommended. Download it while it’s hot!