Constitutional 'Incidents': Interpretation in Real Time

Abstract:     
In recent years, many scholars have suggested that constitutional scholarship pays too much attention to the United States Supreme Court, and too little attention to important constitutional issues that, because of justiciability issues, can never be the subject of Supreme Court opinions. We agree with this critique (which gains extra force from recent arguments over impeachment, Presidential pardons, and the war powers) and suggest a methodology for doing constitutional analysis in areas where the final "opinion" does not come from the Supreme Court.

Borrowing a concept from international law, we argue that scholars and students can profitably study constitutional conflicts that occur outside the courts, and derive from the resolution of those conflicts constitutional principles that can be applied in the future. Not only will this illuminate some of the dark corners of the Constitution, where the Court has shed little or no light, but this approach also publicizes the ways other branches make constitutional law, and can make an evaluation of their work product possible. The incident method thus holds promise both as a tool for constitutional scholarship, and as a valuable pedagogical tool by encouraging students to look beyond the U.S. Reports to the dynamic interaction that occurs when constitutional claims come into conflict outside the context of Supreme Court litigation. In the article, we discuss the narrowness of present constitutional law scholarship and teaching; we describe the "incident" method and its suitability for constitutional law; we describe its methodology; and, finally, we offer an example of the incident method, using the irregular ratification of the Twenty-seventh Amendment, which was ratified in 1992, over two hundred years after James Madison first proposed it. Studying the Twenty-seventh Amendment in this manner sheds light on the constitutional amendment process, whose questions the Supreme Court has deemed nonjusticiable.

Number of Pages in PDF File: 35

Keywords: Constitution, judicial review, Supreme Court, judicial supremacy, extrajudicial, interpretation, constitutional theory, incidents

working papers series