White Fire: Structural Indeterminacy, Constitutional Design, and the Constitution Behind the Text

Journal of Comparative Law, 2008

51 Pages Posted: 16 Dec 2007

See all articles by Benjamin L. Berger

Benjamin L. Berger

York University - Osgoode Hall Law School


This article argues for the importance of attending to the unwritten elements of constitutionalism for both constitutional theory and constitutional design. In particular, the concern is with the structural elements of constitutions - the way in which power is distributed and institutions are structured in constitutions - not on the interpretation or substance of constitutional rights. The article looks carefully at the two North American constitutional orders that emerged out of or in reaction to the unwritten tradition of the UK, analyzing contemporary jurisprudential debates in Canada and excavating a somewhat more buried but no less robust tradition of thinking about the unwritten constitution in the US. Close examination of the practices and theory of constitutionalism in both countries suggests that it is the unwritten constitutional conventions, norms, and ethos that ultimately prove essential to sustaining a stable democracy governed by the rule of law. Furthermore, looking at moments of constitutional tension in both countries - debates about Quebec's place in Canada and times of war and terror, both historical and modern, in the US - indicates that these unwritten elements of the constitutional order become particularly important at times of extremity, constitutional stress, and national crisis. The article closes with reflections on how taking unwritten constitutionalism seriously might inflect contemporary constitutional theory and what it might mean for projects of constitutional design.

Keywords: Constitutional Law, Unwritten Constitutionalism, Canada, United States, Constitutional Theory, Constitutional Design, Conventions, Norms

JEL Classification: K10, K19

Suggested Citation

Berger, Benjamin L., White Fire: Structural Indeterminacy, Constitutional Design, and the Constitution Behind the Text. Journal of Comparative Law, 2008. Available at SSRN: https://ssrn.com/abstract=1071968

Benjamin L. Berger (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3

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