Walter Bagehot and the American Constitution

Abstract:     
This Article examines Walter Bagehot's classic book on the English Constitution and applies his analysis of legal fictions to some contemporary constitutional issues. Part One focuses on Bagehot's distinction between 'dignified' institutions that legitimate government action and efficient ones that exercise power. Part Two explores his thoughts on our Constitution and his criticisms of separation of powers, federalism, and bicameralism. Part Three argues: (1) that our constitutional text is the dignified equivalent of the Crown, which sheds new light on the debate over originalism; (2) that the White House staff is the efficient counterpart to the Cabinet, which suggests that the President's staff should be subject to Senate confirmation and required to testify regularly before Congress; and (3) that the British practice of treating some statutes as part of their fundamental law should incorporated into our discourse.

Working Paper Series