The Architecture of Constitutional Time

Abstract

Bruce Ackerman's account in his We the People series urges the legal recognition of constitutional amendments enacted outside of Article V as part of a larger descriptive project concerning the creation of distinct republics within the Constitution of 1787. One of its limitations is that he and other scholars have not fully appreciated the way in which the original institutional design of the Constitution has facilitated — and perhaps even anticipated — the construction of subregimes during extraordinary times. This Article presents constitutional time and presidential incentives for a lasting legacy as the most important factors influencing constitutional meaning. It is constitutional time — the extraordinary historical triggers that open space for a new regime — that changes constitutional meaning, as the President’s vision tends to prevail over the Court’s. Presidents are incentivized to construct constitutional regimes by the desire to lock in a legacy against future presidents, political opposition, rival branches, and the bureaucracy. This process of maintenance and renewal has been in place since George Washington’s presidency in 1789 and raises important questions for constitutional theory.

Keywords: Constitutional Law, Presidents, George Washington, Theodore Roosevelt, Constitutional Regimes, Constitutional Time, Construction, Departmentalism, Presidential Legacy, New Institutionalism, Historical Institutionalism, Founding, Civil War, New Deal, Supreme Court