Interconstitutionalism

Abstract

New constitutions aim to break from the past, but they rarely accomplish that goal. Instead, predecessor constitutions routinely impact how any new constitution is interpreted and applied. Past constitutions linger and hold influence—even when the new constitution is the product of revolution, civil war, or overthrow of oppressive rule. To explore this phenomenon, we take up a prevalent yet under-studied practice of constitutional interpretation that we call interconstitutionalism. By interconstitutionalism we mean the use of a polity’s antecedent constitution to generate meaning for that same polity’s current constitution. Courts and other interpreters regularly engage in interconstitutionalism, thereby keeping alive and influential the seemingly dead constitutions of the past. Interpretations of the U.S. Constitution regularly make use of the Articles of Confederation; state constitutional interpretation regularly involves comparison to and contrast with the state’s predecessor constitutions; and in foreign countries, too, past constitutions play a starring role in making sense of the nation’s current governing charter. The Article examines the multiple, and often surprising, dimensions of interconstitutional interpretive practices, drawing on examples from federal and state courts and also from courts abroad. Understanding interconstitutionalist practices informs and challenges existing accounts of constitutional interpretation and adjudication. It also sheds light on the very nature of constitutional governance. A core commitment of modern constitutionalism is self-rule: government by the people. But interconstitutionalist practices challenge the very possibility of constitutions as self-governing charters. Interconstitutionalism means that past constitutions, those written and adopted by other people, for another political system, and now superseded, continue to hold sway. And yet, as the Article concludes, interconstitutionalism shows a path forward for meaningful popular sovereignty and a basis for securing constitutional legitimacy.

Keywords: constitutional change, textualism, originalism, constitutional creation, living constitutionalism, constitutional amendment, constitutional theory