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 commentar...

Why does the treatment of American constitutional politics presented in We the People depart so radically from models of constitutional deliberation developed in the type of constitutional economics pioneered by James Buchanan and Gordon Tullock? The paper defines three premises that account for the divergence, and concludes by proposing an inquiry into constitutional design that requires insig...

Henry Monaghan famously argued that much of constitutional interpretation takes the form of what he termed constitutional common law, a body of doctrines and rules that are constitutionally inspired but not constitutionally required and that can be altered or reversed by Congress. This Essay argues that a fair amount of ordinary administrative law qualifies as constitutional common law: Constit...

Constitutional architects usually include in constitutional texts an unamendable clause known as constitutional entrenchment. A constitutional entrenchment serves different purposes such as, shielding and preserving high valued constitutional norms and distancing the state from past autocratic practices. The study of constitutional entrenchment has attracted great attention in recent years sinc...

Scholars have shown that written constitutions may be informally amended in various ways, for instance by judicial interpretation, statute, or executive action. But scholars have yet to fully appreciate that written constitutions may also be informally amended by desuetude. Informal amendment by constitutional desue-tude occurs when a constitutional provision loses its binding force upon politi...

INTRODUCTION................................................................................................ 677 I. LOCHNER IN THE CONSTITUTIONAL CANON......................................... 680 II. LOCHNER AND CONSTITUTIONAL CHANGE .......................................... 696 III. LOCHNER AND CONSTITUTIONAL ETHOS ............................................. 706 IV. LOCHNER AND CONSTITUTIO...

in any political system, recognition of constitutional keywords is an important pathway for understanding constitutional system desirably. the recognition matters increasingly, when a keyword is rooted in constitutional system&aposs; ideological bases and its underlying political theory. ummah, a term with religious and islamic theme, has come from religious literature into the constitution of ...

Can constitutional rights be both personal and rule-dependent? Can it be true of constitutional adjudication (1) that a constitutional litigant must assert “her own” rights, and yet also (2) that the viability of a constitutional challenge depends (or sometimes depends) on whether a particular type of legal rule, for example, a discriminatory or poorly tailored rule, is in force? In a previous ...

How long do constitutional systems persist and what explains their demise? This paper introduces a new set of data on the chronology and content of constitutions that facilitates a test of expectations about constitutional mortality and its associated risk factors. We develop a theory of constitutional longevity, in which executive ambition poses a principal threat to the constitutional order. ...