Document Type

Article

Publication Date

2-2004

Abstract

There is an important sense in which our Constitution's structure is not what it appears to be--a set of activities or functions or geographies, the 'judicial" or the "executive" or the "legislative" power, the "truly local and the truly national. "Indeed, it is only if we put these notions to the side that we can come to grips with the importance of the generative provisions of the Constitution: the provisions that actually create our federal government; that bind citizens, through voting, to a House of Representatives, to a Senate, to a President, and even, indirectly, to a Supreme Court. In this article, the author contends that the deep structure of the Constitution is not a set of functions or geographies, but rather a political economy of relations between the governed and the governing. Based on standard assumptions common in institutional economics, she argues that these relations create incentives that can help us predict real (rather than simply theoretical) risks to structural change in actual cases involving both the separation of powers and federalism. By considering the risk from shifting relations not to activity-description but instead to majorities and minorities, we may come closer to understanding real risks to shifting power, from states to nation and from one national department to another. To this end, against the backdrop of constitutional law, the author brings to bear the converging meanings of history, political science, and lost constitutional text, all of which reveal that the canonical view of our Constitution is quite partial to courts and provides an incomplete picture of our Constitution as a whole.

Publication Citation

56 Stan. L. Rev. 835-900 (2004)