My article, "Interconstitutionalism," with Cem Tecimer (S.J.D. candidate at Harvard), appears in the current issue of the Yale Law Journal. The article abstract is below. Balkinization authors and readers gave us helpful feedback on early drafts of the article. We're now planning some additional pieces from the same project and so further comments and suggestions are very welcome.
Interconstitutionalism, 132 Yale L.J. 326 (2022)
New constitutions aim to break from the past, but they rarely do. Instead, predecessor constitutions routinely influence how a new constitution is interpreted and applied. Past constitutions linger, even when the new constitution is the product of revolution or civil war. To explore this phenomenon, we take up a prevalent yet understudied practice of constitutional interpretation that we call “interconstitutionalism.” By interconstitutionalism, we mean the use of a polity’s antecedent constitution(s) to generate meaning for that same polity’s current constitution. Courts and other interpreters regularly engage in interconstitutionalism, keeping alive 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 predecessor state constitutions; and abroad, past constitutions play a starring role in making sense of nations’ current governing charters.
This Article examines the multiple and often surprising dimensions of interconstitutional interpretive practices, drawing on examples from federal, state, and foreign courts. 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means that past constitutions—those written and adopted by other people, for another political system, and now superseded—continue to hold sway. Yet, as the Article concludes, interconstitutionalism reveals a path forward for meaningful popular sovereignty and a basis for securing constitutional legitimacy.