Constitutional 'Incidents': Interpretation in Real Time

35 Pages Posted: 14 Jun 2001

See all articles by Brannon P. Denning

Brannon P. Denning

Samford University - Cumberland School of Law

Glenn Harlan Reynolds

University of Tennessee College of Law

Date Written: March 15, 2001


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.

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

Suggested Citation

Denning, Brannon P. and Reynolds, Glenn Harlan, Constitutional 'Incidents': Interpretation in Real Time (March 15, 2001). Available at SSRN: or

Brannon P. Denning (Contact Author)

Samford University - Cumberland School of Law ( email )

800 Lakeshore Dr.
Birmingham, AL 35229
United States
205-726-2413 (Phone)
205-726-4060 (Fax)

Glenn Harlan Reynolds

University of Tennessee College of Law ( email )

1505 West Cumberland Avenue
Knoxville, TN 37996-1810
United States
865-974-6744 (Phone)

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