Constitutional Theory, Constitutional Culture

Constitutional theorists and other constitutional commentators make heavy use of a paradigm that mistakes certain aspects of our current constitutional decisionmaking process for inherent parts of our constitutional structure and ignores other important aspects of that process entirely. These distortions and elisions raise concerns about the accuracy of much descriptive constitutional commentary and the foundations of more normative and evaluative work. Drawing in part on an emerging literature, this Article proposes a new paradigm for thinking about the process through which we make constitutional law, one that understands that almost all of our institutional arrangements, practices, norms, and habits of thought are nominal, historically contingent, and ever-evolving, and that aims to treat them as a complicated, interlocking "constitutional culture."