Constitutional Theory, Constitutional Culture

In evaluating the success of the American constitutional system, constitutional theorists often focus their attention on the broad structures through which constitutional law is made--for example, the existence of multi-member courts a majority of whose members usually must agree on the text of a single opinion or the difference in training and life experiences that judges have in comparison with legislators. The same theorists tend to pay little attention to a related set of institutional arrangements that are more recent in their development--for example, the proliferation of amicus briefs filed by advocacy groups, the substantial increase in the use of law clerks, or the degree to which public awareness of the content of Supreme Court opinions is increasingly mediated through ideologically-committed talking heads. This paper makes two related points: First, it argues that constitutional theorists have drastically underestimated the degree to which the content and tenor of constitutional law turns on the second, more novel set of institutional arrangements. Second, it argues that the very distinction between the two categories is ephemeral; both the more traditional and the more novel institutional structures of the American constitutional courts are nominal and historically contingent. The paper concludes with an argument that the two sets of institutions can be--and must be--jointly theorized under the rubric of constitutional culture