The Experience of Structure

57 Pages Posted: 23 Jun 2023 Last revised: 2 Jul 2024

Date Written: June 18, 2023

Abstract

How do we experience constitutional structure? We understand structure—federalism and the separation of powers—as the ordering of governmental bodies. Rarely, however, do we ask how those structures affect our daily lives. Courts treat this question abstractly, if they address it at all. They assert that federalism and separation of powers create “liberty” for individuals without specifying what that liberty looks like and who enjoys it. They speculate about the values of federalism and the normative virtues of the separation of powers. This is structural reasoning that sounds in human experience, but it is empty, based on little more than conjecture. The consequence is a faulty jurisprudential logic that permits courts to diminish federal rights for specific individuals in favor of uncertain, speculative, and generalized structural benefits that only some enjoy.

In this Article, I make the case for centering a broad base of human experience in structural constitutional law and provide a methodology for doing so. I argue that we experience constitutional structure as a calibration of the role and degree of federal and state governments in our lives. Since we all experience government differently—in ways that often relate to race and wealth—so too do we experience constitutional structure differently. I call this variability experiential pluralism and argue that engaging with this pluralism is essential to the constitutional project of equality. Reasoning from experience, rather than abstract normative theory, requires us to broaden our structural logic so that human experience becomes its primary epistemic source. Doing so both provides the intellectual foundations for a progressive, inclusive structural constitutional law and generates new perspectives on otherwise stalled structural issues like state sovereignty and criminal justice.

Keywords: federalism, separation of powers, constitutional law, constitutional structure, experience

Suggested Citation

Weinstein-Tull, Justin, The Experience of Structure (June 18, 2023). 55 Arizona State Law Journal 1513 (2024), Available at SSRN: https://ssrn.com/abstract=4484760

Justin Weinstein-Tull (Contact Author)

Arizona State University College of Law

111 E Taylor St.
Sandra Day O'Connor School of Law
Phoenix, AZ 85004
United States
5419683153 (Phone)

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